          United States Court of Appeals
                     For the First Circuit


No. 06-1085

                         BUREL ORELIEN,

                           Petitioner,

                               v.

               ALBERTO GONZALES, ATTORNEY GENERAL,

                           Respondent.



          PETITION FOR REVIEW OF AN ORDER OF THE BOARD

                     OF IMMIGRATION APPEALS



                             Before

                   Torruella, Selya and Howard,
                         Circuit Judges.



     Harvey J. Bazile and Bazile & Associates on brief for
petitioner.
     Peter D. Keisler, Assistant Attorney General, Civil Division,
Terri J. Scadron, Assistant Director, Office of Immigration
Litigation, and Judith A. Hagley, Attorney, United States
Department of Justice, on brief for respondent.



                        November 3, 2006
               SELYA, Circuit Judge.               The petitioner, Burel Orelien,

seeks judicial review of an order of the Board of Immigration

Appeals    (BIA)        denying        his   omnibus       application      for    asylum,

withholding      of     removal,        or   relief      under    the    United    Nations

Convention Against Torture (CAT).                  The petitioner asserts that the

BIA erred in refusing to grant relief because he presented strong

and   credible     evidence        of    persecution        (past     and   anticipated).

Discerning no error, we deny the petition.

               The procedural background against which this proceeding

plays out is straightforward.                  The petitioner is a 54-year-old

native    of    Haiti       who    arrived    in     the     United     States,    without

inspection, on May 15, 2000.                 He filed a timely application for

asylum.    An immigration officer interviewed him, found no merit in

his application, and referred his case to the Immigration Court for

the institution of a removal proceeding.                          In due course, the

authorities instituted such a proceeding.

               On May 17, 2004, an immigration judge (IJ) convened a

hearing.       The petitioner conceded removability but pressed his

cross-application for asylum, withholding of removal, or relief

under the CAT.          The IJ rejected the petitioner's asseverational

array    for    two     principal        reasons:      (i)    a     perceived     lack    of

credibility       and       (ii)   a    failure     to     demonstrate       either      past

persecution      or     a    likelihood      of    future    persecution.         The     BIA

affirmed the decision, relying exclusively on the latter ground.


                                             -2-
Mindful   of    this     circumscription,        we    treat   the    petitioner's

testimony as credible for purposes of our factual rehearsal.

           The petitioner testified that, while in Haiti, he toiled

on a farm.     He and his cousin, Frances Leger, were close friends.

Leger, who worked in a fabric factory, felt that she was being

"persecuted" by a co-worker. The petitioner testified that the co-

worker followed Leger around at work, once accused her of harboring

sentiments adverse to those of the political party in power, and

threatened her with harm.             In his testimony before the IJ, the

petitioner     did     not   identify    any     specific      acts   of   violence

perpetrated by the co-worker; however, he stated on his asylum

application    that     Leger,   on     one    occasion,    was   beaten    by     the

antagonistic co-worker and two of his cohorts.

           Leger did not testify at the hearing, but the petitioner

attributed this "persecution" to the co-worker's envy of Leger's

job.   He readily admitted both that he was not a party to this feud

and that he himself had never actually experienced any violence.

He said, however, that he feared collateral damage because he was

Leger's constant companion.

           Leger       was   dismissed        from    her   employment     after     a

particularly vitriolic and accusatory encounter with the co-worker.

Concerned about her safety, she decided to flee the country.                       The

petitioner opted to join her and, in December of 1999, the two left

Haiti.


                                        -3-
               As a second basis for his application, the petitioner

testified that some of his family members are adherents of the

Convergence Party, a group that opposes Haiti's ruling Lavelas

Party.      The petitioner mentioned no specific incidents of physical

harm involving his relatives.              Nevertheless, he suggested that,

should he be deported to Haiti, he would be subject to persecution

because of his relatives' political beliefs (the petitioner himself

has    never    been    a   member   of    the    Convergence       Party    and   his

trepidation      is    based   entirely     on    the   possibility     of    imputed

political opinion).

               The administrative record contains a State Department

report on country conditions in Haiti for the year 2003. According

to    that    document,     the   Lavelas       Party   came   to    power    through

corruption and ballot manipulation in national elections held in

November of 2000.        The Convergence Party contested those elections

and thereafter challenged the Lavelas Party's hegemony.                            The

struggle grew acrimonious and sporadic violence ensued, culminating

in    the    attempted      murder   of   two     Convergence       Party    leaders.

Virtually all of the violence occurred after the petitioner's

departure from his homeland.

               Neither the IJ nor the BIA found this two-faceted account

persuasive.       Our review is directed at the BIA's decision.                    In

conducting that appraisal, we evaluate the BIA's findings of fact

under the deferential "substantial evidence" standard. Guzman v.


                                          -4-
INS, 327 F.3d 11, 15 (1st Cir. 2003).                         This standard applies

equally    to    asylum,      withholding           of   removal,    and      CAT   claims.

Settenda v. Ashcroft, 377 F.3d 89, 93 (1st Cir. 2004).

             This standard of review dictates that the BIA's fact-

based determinations be upheld unless a "reasonable adjudicator

would be compelled to conclude to the contrary."                                Bocova v.

Gonzales, 412 F.3d 257, 262 (1st Cir. 2004) (quoting 8 U.S.C. §

1252(b)(4)(B)).           Put another way, the BIA's findings of fact must

be   accepted        as   long    as    they    are      "supported      by   reasonable,

substantial, and probative evidence on the record considered as a

whole."      Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)).        In    contrast,        the   BIA's       answers    to   abstract    legal

questions are reviewed de novo.1                Romilus v. Ashcroft, 385 F.3d 1,

5 (1st Cir. 2004).

             With this tapestry in place, we turn to the petitioner's

asylum claim.         It is the alien's burden to show eligibility for

asylum.    To do so, the alien must establish that he is a "refugee"

within the meaning of the Immigration and Nationality Act, 8 U.S.C.

§ 1158(b)(1).         See Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st Cir.

2004).    The alien can achieve refugee status by showing that, as a

practical matter, he cannot "return to his country of nationality

or   avail      himself      of   that       country's      protections       because   of


      1
      There is an exception to this rule for the BIA's
interpretation of statutes that it must administer. See Bocova,
412 F.3d at 262. That exception is of no moment here.

                                              -5-
persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in an particular social

group, or political opinion."            Ang v. Gonzales, 430 F.3d 50, 55

(1st Cir. 2005) (citation and internal quotation marks omitted);

see 8 U.S.C. § 1101(a)(42)(A).

           If the alien succeeds in showing past persecution based

on one of these five enumerated grounds, he is entitled to a

rebuttable    presumption    of   future    persecution.        Harutyunan    v.

Gonzales, 421 F.3d 64, 67 (1st Cir. 2005).            If — and only if — that

presumption arises, the burden shifts to the government to prove

either "a fundamental change in circumstances such that the alien

no longer has a well-founded fear of persecution in [his] country

of nationality" or a practicable means of "avoid[ing] future

persecution by relocating to another part of [his] country of

nationality."    8 C.F.R. § 208.13(b)(1)(i)(A)-(B).

           The inability of an alien to establish past persecution

does not entirely dash his hopes for asylum.            An alien may prevail

on an asylum claim by proving, simpliciter, a well-founded fear of

future persecution independent of any presumption.               See Ang, 430

F.3d at 55; Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 124 (1st

Cir.   2005).     Traversing      this    avenue     requires   the   alien   to

demonstrate     that   his   fear    of     future     persecution    is   both

subjectively and objectively reasonable. See Da Silva v. Ashcroft,

394 F.3d 1, 4 (1st Cir. 2005).       In other words, the professed fear


                                     -6-
must be both genuine and nestled on a plausible factual predicate.

See id.

           Here, the petitioner strives to keep both routes open by

showing not only past persecution but also an independent fear of

future persecution.    In the last analysis, neither route affords

him the access that he seeks.

           With respect to past persecution, the petitioner relies

mainly on the Leger evidence (after all, the Lavelas Party did not

obtain broad control over the various units of government in Haiti

until after the petitioner had departed).         To determine whether

this route is passable, we must consider the supportability of the

BIA's determination that no past persecution occurred.

           The word "persecution" has not been defined by statute,

and this court — like the BIA — has decided that the concept is

best addressed on a case-by-case basis.        See Bocova, 412 F.3d at

263; see also In re L—K—, 23 I&N Dec. 677, 683 (BIA 2004).              This

does not mean, however, that the inquiry is standardless.           It is

clear, for example, that the term "requires that the totality of a

petitioner's experiences add up to more then mere discomfiture,

unpleasantness, harassment, or unfair treatment."           Nikijuluw v.

Gonzales, 427 F.3d 115, 120 (1st Cir. 2005); accord Nelson v. INS,

232 F.3d 258, 263 (1st Cir. 2000).         This threshold is not easily

crossed.   See, e.g., Bocova, 412 F.3d at 264 (upholding the BIA's

determination   that   harassment    and   occasional   beatings   by    the


                                    -7-
Albanian police did not amount to persecution); Rodriguez-Ramirez,

398 F.3d at 124 (upholding the BIA's determination that an isolated

act of violence against a family member is not enough to establish

persecution).

             In the hot glare of these precedents, the petitioner's

claim of past persecution melts away.                For one thing, he has

proffered no evidence showing any actual violence directed against

him.    For another thing, he has not shown that his cousin, though

threatened, stalked, and perhaps beaten on one occasion, has

actually experienced anything that might resemble persecution.

Even crediting his evidence fully, the most that the petitioner has

shown   is   that    his   cousin    (and,    by   indirection,   he   himself)

experienced a modicum of discomfiture, harassment and abuse.              That

is too frail a lance to unhorse the BIA's fact-based finding that

nothing amounting to persecution occurred. See Nikijuluw, 427 F.3d

at 121.

             We     add,   moreover,        that   the   petitioner's    "past

persecution" claim is doubly deficient. Persecution always implies

some connection to governmental action or inaction, related to a

protected ground for asylum (say, social group membership or

political opinion).        See id.; Harutyunyan, 421 F.3d at 68.          This

means, among other things, that one who seeks asylum must show

mistreatment that is the "direct result of government action,

government-supported       action,     or    government's   unwillingness   or


                                       -8-
inability to control private conduct." Nikijuluw, 427 F.3d at 121.

"[A]ction by non-governmental actors can undergird a claim of

persecution   only   if   there    is    some     showing    that   the   alleged

persecutors   are    in   league    with      the   government      or    are   not

controllable by the government."          Da Silva, 394 F.3d at 7.

          The   petitioner        has    wholly     failed    to    attain      this

milestone. He has not demonstrated that any of the actors involved

in Leger's mistreatment were somehow tied to the government.                    For

aught that appears, his cousin was threatened (and perhaps roughed

up) by a co-worker who was envious of her job.

          It is, of course, true that government inaction sometimes

can be sufficient to show persecution.            See, e.g., Singh v. INS, 94

F.3d 1353, 1360 (9th Cir. 1996); de la Llana-Castellon v. INS, 16

F.3d 1093,1097 (10th Cir. 1994). Here, however, the petitioner did

not offer a scintilla of evidence to show that either he or his

cousin sought governmental protection from the maraudings of this

jealous co-worker, let alone that the authorities could not or

would not provide protection.2

          We turn next to the petitioner's claim that he proved a

well-founded fear of future persecution.                This is a claim of



     2
      If more were needed — and we do not believe that it is — the
petitioner also failed to demonstrate that the abuse he described
was related in any way to his or his cousin's race, religion,
nationality, social group membership, or political opinion. The
absence of such a demonstration is a fatal flaw.      See Toloza-
Jimenez v. Gonzales, 457 F.3d 155, 160 (1st Cir. 2006).

                                        -9-
persecution on the basis of consanguinity; the petitioner himself

testified that he had no political allegiances. Instead, he relies

principally on his relatives' membership in the Convergence Party.

His premise is sound: claims of persecution may, in appropriate

circumstances, rest on imputed political opinion.           See Vasquez v.

INS, 177 F.3d 62, 65 (1st Cir. 1999) (articulating this premise);

Ravindran v. INS, 976 F.2d 754, 760 (1st Cir. 1992) (same).

           In this instance, however, the claim founders. To begin,

the   record   indicates    that   neither     the   petitioner    nor    his

politically active family members experienced any mistreatment

before the petitioner emigrated to the United States.                 As to

violence that may have occurred thereafter, the record is sparse.

From what we can tell, the violence between the Convergence Party

and the Lavelas Party consisted of isolated incidents directed

against certain party leaders.        There is no indication that any of

the petitioner's relatives were targeted or that any of them

comprised part of the Convergence Party's leadership. Nor is there

any evidence that rank-and-file members of the Convergence Party

are routinely exposed to persecution.

           The thinness of the record dooms the petitioner's claim.

The petitioner has the burden of proof on this issue, see Berrio-

Barrera v. Gonzales, 460 F.3d 163, 167 (1st Cir. 2006), and he has

adduced   insufficient     evidence    to   compel   a   finding   that   his

professed fear of future persecution has a plausible basis in fact.


                                   -10-
Under those circumstances, we cannot set aside the challenged

finding.     See Khem v. Ashcroft, 342 F.3d 51, 54 (1st Cir. 2003)

(upholding the BIA's ruling that a person who never had held party

office or made public speeches had not demonstrated a well-founded

fear of future persecution on the basis of political belief).

           This brings us to the petitioner's quest for withholding

of removal.    That quest carries with it a more stringent burden of

proof than does a counterpart effort to obtain asylum.      See Ang,

430 F.3d at 58 (explaining that withholding of removal requires an

alien to establish a clear probability of persecution, rather than

a well-founded fear of persecution); Rodriguez-Ramirez, 398 F.3d at

123 (same).    In view of our holding that the BIA supportably denied

the petitioner's asylum claim, see supra, his claim for withholding

of removal becomes a dead letter.

           The final leg of our journey takes us to the petitioner's

CAT claim.    Under the terms of the CAT, the United States cannot

return an alien to his country of nationality if "there are

substantial grounds for believing [he] would be in danger of being

subjected to torture."     Pub. L. No. 105-277, § 2242, 112 Stat.

2681, 2681-822 (1998).    In order to find sanctuary under the CAT,

however, an alien must show that he will more likely than not be

tortured upon returning to his homeland.    See Ang, 430 F.3d at 58.

Torture is a term of art, defined by regulation as "any act by




                                 -11-
which severe pain or suffering, whether physical or mental, is

intentionally inflicted on a person."          8 C.F.R. § 208.18(a)(1).

            In   this   instance,    the    petitioner   has    proffered   no

evidence of physical harm directed against him while he was in

Haiti.     By the same token, he has proffered no evidence, either

direct or circumstantial, that he will be tortured at the hands of

the government should he be returned to Haiti.           This utter failure

of proof compels us to uphold the BIA's denial of redress under the

CAT.     In this particular, as in other particulars, the BIA's

decision    must   stand   because    the    evidence    does   not   "point[]

unerringly in the opposite direction."           Laurent v. Ashcroft, 359

F.3d 59, 64 (1st Cir. 2004).

            We need go no further. For the reasons elucidated above,

we sustain the final order of removal and deny the petition for

review.



So Ordered.




                                     -12-
