                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-6-2004

Calixte v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4258




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                                                                  NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 02-4258


                                   MARIO CALIXTE,
                                              Petitioner

                                             v.

                         John Ashcroft, Attorney General of the
                                    United States


                 PETITION FOR REVIEW OF AN ORDER OF THE
                     BOARD OF IMM IGRATION APPEALS
                           Agency No. A75 969 643


                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 13, 2004


             Before: BARRY, SMITH, and GREENBERG, Circuit Judges


                              (Opinion Filed: April 6, 2004)


                                        OPINION




BARRY, Circuit Judge

      Mario Calixte, a native and citizen of Haiti, petitions for review of a final order of

the Board of Immigration Appeals (“BIA”) dismissing his appeal of the decision of the
Immigration Judge (“IJ”). The IJ denied Calixte’s application for asylum, withholding of

removal, and protection under the Convention Against Torture. We have jurisdiction

under 8 U.S.C. § 1252(a), and will deny the petition.

                                             I.

       Calixte entered the United States on October 20, 1997 as an nonimmigrant visitor

for pleasure. In February 1998, he filed an application for asylum with the Immigration

and Nationality Service (“INS”). The INS issued a Notice to Appear on July 29, 1998,

charging Calixte with removability under INA § 237(a)(1)(B). Calixte conceded

removability, but renewed his requests for asylum and restriction on removal.

       At the removal hearing and in his affidavit, Calixte alleged the following facts. In

the mid-1990s, he worked as an inspector for the Pan American Development Foundation

(“PADF”) in Haiti, a non-governmental organization funded by the United States. PADF

funded projects for farm development and irrigation in Haiti. Calixte’s job as an

inspector was to verify the attendance of the workers and the payroll. Some of the team

chiefs and controllers at the site falsely claimed to be employing more people than they

actually were, and kept the money that PADF paid for these non-existent employees.

Calixte revealed some of their misdeeds by writing reports to PADF indicating the actual

number of employees hired. As a result, in March 1995, one of the team chiefs wanted to

ambush him.

       Calixte belonged to a political party, called MIDH. He was not an officer, but a



                                             2
“simple member.” (Admin. R. at 102). Although he wanted to be the MIDH local

secretary for the Carrefour District, he never became such because MIDH was not active.

According to Calixte, he talked to people about politics from time to time, but never

specifically spoke out about MIDH.

       In April 1996, Calixte took over a PADF project located in Port-au-Prince. Johnny

Charles, a contractor, introduced Calixte to a controller, Macly. PADF assigned 96 teams

of 20 workers each to the project. Later that month, Calixte conducted a survey of the

site and did not see 96 teams working. He informed Macly of this, and Macly offered

him 10,000 gourdes to keep quiet. Calixte refused the bribe, thereby causing tension

between them.

       Outside of his job, Calixte and others developed a self-help program for Haitians

called PEC. PEC was not a political organization. On May 30, 1996, as Calixte was

walking home after attending a PEC meeting, local protesters set fires in the street

because the road repair money for their district had been withdrawn. Police officers

arrested Calixte and others. Calixte was interrogated by the police and accused of starting

the fires. The police released him after four hours.

       In June 1996, Calixte visited the United States on a 21-day vacation. Although he

was afraid to return to Haiti, he did so because his family and work were there. He

resumed his work at PADF and filed a final report which “detailed the problems with

nonverification of work, nonverification of workers, and nonverification of payrolls.”



                                             3
(Admin. R. at 183). The PADF program ended in 1997, and PADF did not renew its

grant. Macly and his friends blamed Calixte for the non-renewal of the PADF contract.

Calixte worked as a taxi driver afterwards, and continued his involvement with PEC.

       In February 1997, the police searched his home because they had been informed

that he was harboring guns. The police confiscated his PADF papers and took him to the

police station. He was released after approximately an hour. Late in 1997, he received

threats from Macly’s friends. As a result, he moved from place to place. In September

1997, some of M acly’s friends shot guns into the air near his house and yelled threats

directed at him. He did not inform the police because he believed that Macly had

connections with them. On one occasion, he saw Macly and the Haitian President walk

hand in hand when the President visited the PADF work site.

       In a decision dated October 19, 1999, the IJ denied Calixte’s application in all

respects, finding that (1) he did not present a credible case; (2) the threats by Macly and

others did not amount to persecution on account of a specified ground under the statute;

and (3) he did not establish the likelihood of future persecution.

       Calixte appealed to the BIA. In an order dated October 25, 2002, the BIA

dismissed the appeal. The BIA did not make a finding one way or the other as to

Calixte’s credibility; rather, it found that the threats made against Calixte did not

constitute persecution and, in any event, did not constitute persecution based on a

statutorily protected ground. The BIA’s decision, in its entirety, is as follows:



                                              4
       [Calixte] has appealed from the Immigration Judge’s decision dated
       October 19, 1999. However, even assuming that [Calixte] is credible, the
       record does not support [his] contention that he is eligible for asylum or
       withholding of removal. [Calixte] claims that he exposed fraudulent
       criminal behavior in the form of kickbacks on a PADF program in Haiti to
       aid irrigation and farm development funded by the United States. When he
       exposed the scheme, [Calixte] claimed that the two beneficiaries of the
       scheme, named Macly and Johnny Charles, threatened him. The threats
       received by [Calixte] are not persecution within the meaning of the Act.
       Matter of V-T-S, 21 I&N Dec. 792 (BIA 1997) (threats resulting from
       criminal activity such as extortion or kidnaping are not persecution within
       the meaning of the Act).

       [Calixte] further claimed that the threats may have been linked to his
       membership in the MIDH or PEC political groups. His testimony on this
       issue falls well short of establishing a causal connection between his limited
       involvement in these groups and the threats he received from Macly as a
       result of Macly’s criminal kickback scheme. Accordingly, the appeal is
       dismissed.

       Calixte filed a petition for review in this Court. Because the BIA issued its own

decision and did not merely defer to the IJ, we review that decision, and not the decision

of the IJ. See Xie v. Ashcroft, 359 F.3d 239, 240 (3d Cir. 2004). We must uphold the

BIA’s decision if it is supported by substantial evidence in the record. Under this

standard, the BIA’s decision must be sustained “unless the evidence not only supports a

contrary conclusion, but compels it.” Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.

2003) (quoting Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001)).




                                             5
                                              II.

       The Attorney General, in his discretion, may grant asylum to an alien “because of

persecution or a well-founded fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42).

To establish eligibility for asylum on the basis of past persecution, the applicant must

demonstrate: “(1) an incident, or incidents, that rise to the level of persecution; (2) that is

‘on account of’ one of the statutorily-protected grounds; and (3) is committed by the

government or forces the government is either ‘unable or unwilling’ to control.”

Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003) (citations and internal

quotations omitted). If past persecution has not been established, the applicant can show

that he has a well-founded fear of persecution on account of one of the enumerated

grounds by demonstrating that he has “a genuine fear, and that a reasonable person in

[his] circumstances would fear persecution if returned to [his] native country.” Gao v.

Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002); Lukwago v. Ashcroft, 329 F.3d 157, 167 (3d

Cir. 2003).

       The BIA determined that Calixte failed to qualify for asylum or withholding of

removal because the threats received by him were not “persecution” and that there was no

causal connection between those threats and his limited involvement in the MIDH or PEC

groups. We will not disturb these findings. The record simply does not compel a

conclusion that the threats by Macly and others were so extreme as to constitute



                                               6
persecution or that, even if they were, they were based on Calixte’s political opinion or

any other protected ground. Rather, the threats resulted from an employment-related

dispute that was personal in nature, based on Calixte’s refusal to file false inspection

reports regarding the number of employees at the project site. An example of the threats

follows:

       “You still here? In this country? I will take care of you!” . . . “You stop me
       from eating? I will stop you from shitting!” referring to revenge against
       [Calixte] for interfering with their livelihood. . . . “The one you took money
       from is looking for you now.” (Admin. R. at 185).

These statements, as well as others in the record, demonstrate that what mattered to Macly

and the other corrupt individuals was not that Calixte had expressed a political opinion,

but that his actions cost them money. 1

       We also concur with the BIA’s determination that the evidence did not establish a

link between the threats made and Calixte’s limited involvement with MIDH and PEC.

Calixte testified that he was only a “simple member” of MIDH, and that MIDH was not



  1
   See, in this connection, the country report that is part of the record in this case. The
1998 Department of State’s “Profile of Asylum Claims and Country Conditions” states:

       Haiti’s extremely poor human rights record stems in part from endemic
       conditions, such as corruption, poverty, exploitation, and ignorance. The
       commission of abuses for personal, institutional, and partisan ends was
       common. The relationship of these abuses to the five protected grounds
       under the Refugee Convention is often hard to establish. Some applicants
       may make vague, generic pleas in which the elements of persecution or of
       political motivation for the persecution are not apparent. In such claims, it
       is often not possible to identify qualifying conditions related to the five
       protected grounds. (Admin. R. at 174).

                                              7
active. The State Department’s Report also indicates that “[m]embers of the MIDH,

current or former, would appear to have little to fear on returning to Haiti . . . We are

aware of no attacks against MIDH supporters since November 1995.” (Admin. R. at

164). With regard to PEC, we note that it was not a political organization and was never

intended to be one. Rather, PEC was a self-help project consisting of approximately

fourteen members. Even assuming, arguendo, that PEC’s activities were political in

nature, the record does not indicate that any “persecution” inflicted upon Calixte was on

account of his involvement with PEC. And PADF, of course, was a non-governmental

organization, funded by the United States, that administered development grant programs.

Calixte’s attempt to convert his filing of reports for his PADF job into political acts,

while surely valiant, is just as surely too far-fetched.

       Calixte contends, however, that his alleged persecution was not only because of his

political opinion but also because of his membership in a particular social group.

According to him, the social group was based on his “past occupation and his filing

negative reports.” (Petitioner’s Br. at 23). To qualify for asylum based on social group,

the applicant must (1) identify a group that constitutes a “particular social group;” (2)

establish that he is a member of that group; and (3) show that his persecution is based on

that membership. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993). The BIA has held

that a particular social group refers to:

       a group of persons all of whom share a common, immutable characteristic.
       The shared characteristic might be an innate one such as sex, color, or

                                               8
       kinship ties, or in some circumstances it might be a shared past experience
       such as former military leadership or land ownership. Matter of Acosta, 19
       I. & N. Dec. 211, 233 (BIA 1985), overruled in part on other grounds, as
       stated in Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987).

Calixte has simply not identified a “particular social group” to which he belongs, much

less shown that any harm he suffered at the hands of Macly and others was based on his

membership in that group. Again, the threats were directed at him individually because

of a work-related conflict with corrupt individuals.2

       Given the above, we will also not disturb the BIA’s determination denying

Calixte’s application for withholding of removal. To qualify for withholding of removal,

an applicant must demonstrate that there exists a “clear probability” that he will be

persecuted on account of a statutorily protected ground, if removed to the home country.

See Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). If an applicant “fails to

establish the well-founded fear of persecution required for a grant of asylum, he or she

will, by definition, have failed to establish the clear probability of persecution required

for withholding of deportation.” Id. at 469-70 (citation omitted).

       Finally, Calixte asks us to remand this case because the BIA failed to consider his

application for protection under the Convention Against Torture. However, Calixte did

not raise this claim before the BIA. Judicial review of final orders of removal is granted

“only if . . . the alien has exhausted all administrative remedies available to the alien as of



  2
   We also find that Calixte has not established that his fear of persecution, if returned to
Haiti, is on account of one of the statutorily enumerated grounds.

                                               9
right.” Abdulrahman, 330 F.3d at 595 (internal quotations omitted); see also Xie v.

Ashcroft, 359 F.3d 239, 246 n.8 (3d Cir. 2004). Calixte’s brief to the BIA indicates that

he appealed only the IJ’s “decision regarding his applications for asylum and restriction

on removal,” (Admin. R. at 12), and concludes as follows:

       Therefore, Mr. Calixte asks the Board to:
             1) Grant him asylum;
             2) Grant him restriction on removal; or
             3) Remand for further consideration in light of all the evidence
             presented by respondent. (Admin. R. at 28).

Because Calixte failed to exhaust his administrative remedies with respect to the claim

under the Convention Against Torture, we are without jurisdiction to consider it.

                                            III.

       For the foregoing reasons, we will deny the petition for review.




                                            10
