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<pre>                   United States Court of Appeals <br>                        For the First Circuit <br>                        ____________________ <br>                                   <br>                                   <br>No. 97-1851 <br> <br>                          NICKEN FERGISTE, <br>                                   <br>                             Petitioner, <br>                                   <br>                                 v. <br>                                   <br>               IMMIGRATION AND NATURALIZATION SERVICE, <br>                                   <br>                             Respondent. <br>                                   <br>                        ____________________ <br>                                   <br>                 ON PETITION FOR REVIEW OF AN ORDER <br>                 OF THE BOARD OF IMMIGRATION APPEALS <br>                                   <br>                        ____________________ <br>                                   <br>                               Before <br>                                   <br>                       Selya, Stahl and Lynch, <br>                           Circuit Judges. <br>                                   <br>                        ____________________ <br>                                   <br>    David S. Clancy with whom Deborah E. Anker was on brief for <br>petitioner. <br>    Karen Ann Hunold, Attorney, with whom Frank W. Hunger, Assistant <br>Attorney General, and Linda S. Wendtland, Senior Litigation Counsel, <br>Office of Immigration Litigation, United States Department of Justice, <br>were on brief for respondent. <br> <br> <br>                         ____________________ <br> <br>                           March 12, 1998 <br>                         ____________________

      STAHL, Circuit Judge.  Petitioner Nicken Fergiste appeals a <br>    Board of Immigration Appeals ("Board" or "BIA") decision <br>    affirming a final order of exclusion, denying him political <br>    asylum and withholding of deportation.  The Board found that <br>    changed country conditions in Haiti had obviated any need for <br>    political asylum.  Because the Board failed to apply, and the <br>    Immigration and Naturalization Service ("INS") failed to <br>    rebut, a presumption that petitioner had a reasonable fear of <br>    persecution in the future if he were to return to Haiti, we <br>    reverse and remand the case to the Board.   <br>                              I.   <br>                  FACTS AND PRIOR PROCEEDINGS <br>      Fergiste seeks political asylum under section 208(a) of the <br>  Immigration and Nationality Act ("INA"), 8 U.S.C.  1158(a), <br>  and withholding of deportation under section 243(h) of the <br>  INA, 8 U.S.C.  1253(h), on the basis that he has suffered <br>  political persecution in his home country of Haiti and that <br>     such persecution will resume if he returns to Haiti. <br>      Fergiste's testimony, affidavit, and asylum application <br>  showed the following facts.  Fergiste was born in Port-au- <br>  Prince, Haiti, on April 17, 1966.  He worked as a fork lift <br>  driver for the port authority, a supervisor on a merchant <br>  ship managed by his cousin, and an accountant.  From 1979 <br>  until the early 1980s, Fergiste attended and participated in <br>  activities at the St. Jean Bosco Church, where Jean-Bertrand <br>  Aristide preached reform.  He also attended meetings of the <br>  National Front for Change and Democracy ("FNCD"), Aristide's <br>  political party, and helped to campaign and raise money for <br>    Aristide's bid to be president of Haiti.  In addition, <br>    Fergiste worked with a "neighborhood committee" that, <br>  apparently, was both devoted to community improvement and <br>    involved with politics, and "Family is Your Life," an <br>  organization dedicated to helping orphans.  In 1990, on the <br>    day Aristide was elected president, the FNCD assigned <br>  Fergiste to monitor for fairness a Port-au-Prince polling <br>                            booth. <br>      Fergiste believes that, as a result of his open support of <br>  Aristide and his friendship with another Aristide supporter, <br>  Pierre Charles, he became a target of political persecution <br>  by the Ton-Ton Macoutes, a paramilitary group that protected <br>  the Duvalier dictatorship until 1986 when the Duvaliers were <br>  deposed.  He also believes that he was targeted by military <br>  "attachs" that protected a series of military dictators from <br>  1986 until Aristide's election in 1990.  Fergiste recounts <br>     several incidents to support his claim of political <br>  persecution.  On July 29, 1985, he was shot in the shoulder <br>  by a member of the Ton-Ton Macoutes, allegedly because of his <br>  association with Pierre Charles.  In May 1989, government <br>   attachs raided Fergiste's home and, when unable to find <br>  Fergiste, murdered his aunt.  Following a 1991 coup d'etat <br>    during which the military regained power, a political <br>  associate of Fergiste was repeatedly threatened and detained <br>  and eventually went into hiding, and Pierre Charles was shot <br>  and killed.  In September 1993, three government attachs <br>  approached Fergiste and told him to cease associating with a <br>  fellow Aristide supporter and to become an attach.  One of <br>  them hit him on the back of his shoulder with either his fist <br>  or the butt of a rifle.  And in December 1993, three attachs <br>  went to Fergiste's mother's house, threatened her by putting <br>    a gun to her head, and eventually fired several times, <br>                 hitting her in the shoulder. <br>      In early 1994, fearing for his safety, Fergiste fled his <br>  homeland and came to the United States unlawfully.  Although <br>   democratic government was restored to Haiti in September <br>  1994,   Fergiste remains afraid to return on the grounds that <br>    Haiti is still unstable, and that anti-Aristide factions <br>    continue to persecute Aristide supporters. <br>        After arriving in the United States and being placed in <br>    exclusion proceedings, Fergiste requested political asylum <br>    under section 208(a) of the INA, 8 U.S.C.  1158(a), and <br>    withholding of deportation under section 243(h) of the INA, 8 <br>    U.S.C.  1253(h).  On August 23, 1995, an Immigration Judge <br>    ("IJ") rejected both of these requests.  On June 30, 1997, a <br>    three-member panel of the BIA rejected Fergiste's appeal in a <br>  highly-fractured decision.    It issued a final order of <br>    exclusion against him.  This appeal followed. <br>                              II. <br>                           DISCUSSION <br>                     A.  Standard of Review <br>      "The Board's determination of statutory eligibility for <br>    relief from deportation is conclusive if 'supported by <br>  reasonable, substantial, and probative evidence on the record <br>  considered as a whole.'"  Gebremichael v. INS, 10 F.3d 28, 34 <br>  (1st Cir. 1993) (quoting INS v. Elias-Zacarias, 502 U.S. 478, <br>  482 (1992)); 8 U.S.C.  1105a(a)(4).  Reversal of the Board's <br>   determination thus depends on whether the petitioner has <br>  shown "that the evidence he presented was so compelling that <br>   no reasonable factfinder could fail to find [that he was <br>  eligible]."  Elias-Zacarias, 502 U.S. at 484.  As always, we <br>               review questions of law de novo. <br>                          B.  Analysis <br>      Petitioner makes five arguments that the Board's decision <br>  should be remanded or reversed; all but the fourth argument <br>  are based on his right to procedural due process.  First, <br>   Fergiste argues that the Board impermissibly applied the <br>  doctrine of "changed country conditions" by rote, without <br>  adequately considering the effect of changed conditions on <br>   his particular case.  Second, he contends that the Board <br>   failed to consider evidence that anti-Aristide factions <br>  continued to persecute Aristide supporters after his 1994 <br>  return to power and that such persecutions continue to this <br>       day.  Third, Fergiste argues that, in making its <br>   determination, the Board relied on evidence of political <br>   changes in Haiti which took place after the parties had <br>  submitted briefs to the Board and to which Fergiste was not <br>  given an opportunity to respond.  Fourth, he asserts that the <br>   Board member who authored the concurring opinion in his <br>  appeal, and without whom there would have been no majority <br>      decision for denial of asylum, failed to apply the <br>   presumption of future persecution required by that Board <br>   member's finding of past persecution.  Finally, Fergiste <br>  contends that, although the Board member who authored the <br>    controlling opinion found that Fergiste had failed to <br>      establish past persecution, he did not provide any <br>                explanation for that finding. <br>      We begin with petitioner's fourth argument: that the Board <br>  member who authored the concurring opinion committed a legal <br>  error which undermines the Board's decision.  Our focus on <br>    this argument necessarily leads us to address, without <br>  deciding, petitioner's first, second, and fifth arguments.  <br>        A finding of past persecution triggers a regulatory <br>  presumption that the applicant has a well-founded fear of <br>      future persecution, provisionally establishing the <br>  applicant's refugee status and eligibility for asylum.  See 8 <br>  C.F.R.  208.13(b)(1)(i)(1997).  Where the Board finds that <br>  past persecution has been established, the INS has the burden <br>  of proving, by a preponderance of the evidence, that "since <br>     the time the persecution occurred conditions in the <br>  applicant's country of nationality . . . have changed to such <br>  an extent that the applicant no longer has a well-founded <br>  fear of being persecuted if . . . he were to return."  Id. <br>       The INS argues that Fergiste failed to establish past <br>  persecution and that, even if he had, the Board implicitly <br>  recognized and rebutted the presumption of future persecution <br>  by relying on the discussion of changed country conditions in <br>  In Re E-P-, No. 3311 (BIA Mar. 14, 1997).  In essence, the <br>  INS's latter argument is that the official notice of changed <br>   country conditions taken by the Board in an earlier case <br>  counters the specific evidence of persecution that Fergiste <br>    has presented and overcomes the presumption of future <br>     persecution.  We do not agree with either argument. <br>        First, as a legal matter, Fergiste established past <br>   persecution.  The Board panel that considered Fergiste's <br>   appeal consisted of three persons, each of whom wrote a <br>  separate opinion, and none of whom joined an opinion by one <br>  of the other two members.  Although the concurring opinion <br>   was so designated because it reached the same outcome -- <br>  denial of asylum and withholding of deportation -- as the so- <br>  called majority opinion, it followed the dissenting opinion <br>       with regard to its finding of past persecution.  <br>  Notwithstanding the result of the appeal, the fact remains <br>  that two Board members -- a majority -- found that Fergiste <br>  had established past persecution.  Thus, as a matter of law, <br>   although the author of the "majority" opinion deemed the <br>  evidence Fergiste presented to be insufficient to establish <br>    past persecution, a presumption of future persecution <br>  nonetheless arose from the findings of the remaining Board <br>  members.   <br>        One of the two Board members who found past persecution did <br>    not apply a presumption of future persecution, however.  <br>    Although the dissenting Board member would have applied the <br>    presumption, the concurring member did not, stating only <br>    that, although he found that Fergiste had established past <br>    persecution, he "read[] Matter of E-P- . . . to require <br>    denial of the respondent's asylum application on the basis of <br>    changed country conditions."  Because a majority of the Board <br>    reasonably found that Fergiste had established past <br>    persecution, there arose a rebuttable presumption of future <br>    persecution, and the Board's failure to apply it constitutes <br>    legal error. <br>        Second, even if we accept the INS's argument that the Board <br>    implicitly applied a presumption of future persecution, the <br>    Board's administrative notice of changed country conditions <br>    did not suffice to show that Fergiste himself no longer had a <br>  reasonable fear of future persecution.    Abstract "changed <br>    country conditions," do not automatically trump the specific <br>    evidence presented by the applicant.  Rather, changes in <br>    country conditions must be shown to have negated the <br>    particular applicant's well-founded fear of persecution.  See8 C.F.R.  208.13(b)(1)(i); Vallecillo-Castillo v. INS, 121 <br>    F.3d 1237, 1240 (9th Cir. 1996); Osorio v. INS, 99 F.3d 928, <br>    932-33 (9th Cir. 1996). <br>        The only evidence in the record in support of the INS's <br>    position were a 1994 advisory opinion letter from the State <br>    Department, and a 1994 State Department Profile of Asylum <br>    Claims and Country Conditions that discussed Haiti's <br>    political and social conditions in generalized terms.  For <br>    his part, Fergiste presented a great deal of evidence <br>    relating to his own specific circumstances.  Such evidence <br>    included a 1995 letter from the Deputy Representative of the <br>    United Nations High Commissioner for Refugees stating that at <br>    least seventy Aristide supporters had been murdered in the <br>    two months following the United States intervention in Haiti; <br>    a 1995 Reuters newswire story stating that a member of the <br>    FNCD had been shot to death; and a 1995 report of the New <br>    England Observers' Delegation to Haiti stating that political <br>    assassinations and intimidation of Aristide supporters <br>    persist.      Indeed, Fergiste presented hundreds of pages of <br>    documentary evidence that either contradicted the Board's <br>    conclusions or placed them into question.  Yet the Board <br>    mentioned none of them in its analysis, nor did it discuss <br>    how or whether Fergiste's particular situation may be <br>    affected by the changed country conditions that it <br>    recognized.  That the Board ignored Fergiste's individual <br>    situation is further supported by the fact that the Board's <br>    majority opinion takes the heart of its analysis virtually <br>    verbatim from the language of an earlier opinion, In Re E-P-, <br>    No. 3311 (BIA Mar. 17, 1997), in which the Board denied the <br>    petitioner's application for asylum on a finding of no past <br>    persecution and changed country conditions.  Thus, even <br>    assuming that the Board implicitly applied a presumption of <br>    future persecution, the Board's reliance on general changed <br>    country conditions did not support its conclusion that <br>    Fergiste's fear of personal persecution is no longer well- <br>    founded. <br>        Therefore, without determining whether the Board's rote <br>    recitation of the earlier opinion and its failure to consider <br>    Fergiste's individual situation in the context of the changed <br>    country conditions violated Fergiste's procedural due process <br>    rights, we conclude as a matter of law that, because the INS <br>    did not rebut the presumption of future persecution once a <br>    majority of the Board had found past persecution, Fergiste is <br>    statutorily eligible for asylum.  See Vallecillo-Castillo, <br>    121 F.3d at 1240; Prasad v. INS, 101 F.3d 614, 617 (9th Cir. <br>    1996) (determining that the INS had not rebutted the <br>    presumption of future persecution, even though the Board had <br>    not reached that issue).  It remains to be determined, <br>    however, whether Fergiste is entitled to asylum as a matter <br>    of the discretion of the Attorney General.  See Ravindran v. <br>    INS, 976 F.2d 754, 758 (1st Cir. 1992); see also 8 U.S.C.  <br>    1158(b)(1) (granting discretion to the Attorney General).  We <br>    thus remand to the IJ to determine, in the exercise of <br>    discretion on behalf of the Attorney General, whether to <br>  grant Fergiste's application for asylum.    <br>        We next address Fergiste's withholding of deportation claim.  <br>    Section 243(h)(1) of the INA, 8 U.S.C.  1253(h)(1), provides <br>    that "[t]he Attorney General shall not deport or return any <br>    alien . . . if . . . such alien's life or freedom would be <br>    threatened."  An applicant's deportation must be withheld if <br>    he or she establishes that "it is more likely than not that <br>    he or she would be persecuted on account of race, religion, <br>    nationality, membership in a particular social group, or <br>    political opinion."  8 C.F.R.  208.16(b)(1); see INS  v. <br>    Stevic, 467 U.S. 407, 429-30 (1984).  To be entitled to <br>    withholding of deportation, then, an applicant must <br>    demonstrate "a clear probability of persecution," see Stevic, <br>    467 U.S. at 413, a stricter standard than the "well-founded <br>    fear of persecution" required to obtain asylum eligibility. <br>        However, some forms of past persecution trigger a regulatory <br>    presumption that the applicant is entitled to withholding of <br>    deportation.  In particular, if the applicant is determined <br>    to have "suffered persecution in the past such that his life <br>    or freedom was threatened," the INS assumes the burden of <br>    proving, by a preponderance of the evidence, that conditions <br>    in that country have changed to the extent that "it is no <br>    longer more likely than not that the applicant would be so <br>    persecuted there."  Id.  208.16(b)(2); Singh v. INS, 94 F.3d <br>    1353, 1361 (9th Cir. 1996).  Thus, although a finding of <br>    general "past persecution" is sufficient to shift the burden <br>    of proof under 8 C.F.R.  208.13(b)(1)(i) (the regulatory <br>    standard for asylum eligibility), the Board must find that <br>    the applicant's life or freedom has been threatened to shift <br>    the burden of proof under 8 C.F.R.  208.16(b)(2) (the <br>    regulatory standard for withholding of deportation). <br>        Here, the Board's finding that Fergiste suffered past <br>    persecution indicates that Fergiste is entitled to <br>    withholding of deportation.  To be sure, the concurring Board <br>    member did not mention specifically anything about the nature <br>    of the harm that he found Fergiste to have suffered.  <br>    Nonetheless, "[a] key factor in finding evidence sufficient <br>    for withholding of deportation is whether harm or threats of <br>    harm were aimed against petitioner specifically," Gonzales- <br>    Neyra v. INS, 122 F.3d 1293, 1297 (9th Cir. 1997) (internal <br>    citation omitted).  We thus determine that the concurring <br>    opinion's finding of past persecution, supplemented by the <br>    evidence in the record of particularized harm, demonstrate <br>    that Fergiste's life or freedom, or both, had been <br>    threatened.  This conclusion is supported by the fact that <br>    the distinction between the asylum eligibility and <br>    withholding of deportation standards regarding past harm has <br>    played no role in cases that have considered both provisions.  <br>    See, e.g., Vallecillo-Castillo, 121 F.3d at 1240 ("Because we <br>    find that petitioner has suffered past persecution, we also <br>    find that petitioner is entitled to a presumption 'that his <br>    life or freedom would be threatened' if deported . . . ."); <br>    Singh v. Ilchert, 69 F.3d 375, 381 (9th Cir. 1995); Singh v. <br>    Ilchert, 63 F.3d 1501, 1510 (9th Cir. 1995). <br>        The INS thus had the burden of showing that it is no longer <br>    more likely than not that the persecution would resume if <br>    Fergiste were to return to Haiti.  See 8 C.F.R.  <br>    208.16(b)(2).  As discussed above, the general evidence that <br>    the INS presented does not rebut this presumption.  We <br>    therefore hold that petitioner was entitled to withholding of <br>    deportation. <br>        Finally, in response to our brother's disagreement with our <br>    decision to reverse, rather than to remand, the asylum and <br>    withholding of deportation issues, we note that, although <br>    courts have seen fit to order a remand for further <br>    factfinding in cases in which the Board failed to apply the <br>    presumption of future persecution, see Osorio, 99 F.3d at <br>    932-33; Singh, 94 F.3d at 1361, that course is not necessary <br>    in this case.  In Osorio and Singh, the Board had erroneously <br>    concluded that the applicants had not suffered past <br>    persecution.  See Osorio, 99 F.3d at 931-33; Singh, 94 F.3d <br>    at 1360-61.  In Singh, the Board failed to reach the issue of <br>    whether the INS had rebutted the presumption because it had <br>    incorrectly found that the applicant had not suffered past <br>    persecution; the remand allowed the Board to consider this <br>    issue for the first time.  See 94 F.3d at 1360-61.  In <br>    Osorio, a remand was necessary both to address what the court <br>    viewed as an insufficiently reasoned credibility <br>    determination against the applicant and to reconsider the <br>    issue of the presumption if it found the applicant credible.  <br>    See 99 F.3d at 932-33. <br>        In Fergiste's case, by contrast, the Board did find past <br>    persecution, but erroneously regarded itself as bound to <br>    reject his application for asylum on the basis of changed <br>    country conditions.  If the Board had instead applied the <br>    regulation, the regulation would have required the Board to <br>    grant Fergiste's application for withholding of deportation <br>    and to find him eligible for asylum because the INS had <br>    failed to present individualized evidence rebutting the <br>    presumption.  This court would have affirmed such a decision, <br>    for which there was "substantial evidence."  A remand at this <br>    stage would permit the INS to argue its case against Fergiste <br>    a second time only because the Board failed to comply with <br>    its own regulations.  Such an opportunity would allow the <br>    agency to benefit from its own error at the expense of <br>    Fergiste, and we do not feel that the government is entitled <br>    to a second bite of the apple in the circumstances of this <br>    case. <br>        In light of the foregoing discussion, we reverse the Board's <br>    denial of asylum and withholding of deportation.  Because <br>    asylum is granted at the Attorney General's discretion, we <br>  remand that portion of the case for such a determination.   <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>     <br>                        - dissent follows -

    SELYA, Circuit Judge  (concurring in part and dissenting in <br>  part).  I concur wholeheartedly in the majority's conclusion <br>    that the Board member who authored the pivotal opinion <br>  committed a legal error that undermines the Board's decision.  <br>  If the majority opinion stopped there   vacating the Board's <br>  decision and remanding for a further hearing   I would be <br>  content.  But the majority presses on, deciding for itself <br>  that Fergiste has a well-founded fear of future persecution <br>  should he return to his homeland.  That determination is both <br>  fact-sensitive and time-sensitive, and, in my view, ought to <br>   be made by the Board on a full record, not gleaned by an <br>  appellate court from bits and pieces of an administrative <br>  record that has produced an inharmonious cacophony of rulings <br>  by three members of the BIA.  The case law, while less than <br>  crystalline, supports this position.  See, e.g., Osorio v. <br>    INS, 99 F.3d 928, 932-33 (9th Cir. 1996) (holding that <br>  "[f]ailure to recognize the existence of a presumption in <br>  [petitioner's] favor   much less to rebut that presumption in <br>  an individualized manner   constitutes an abuse of discretion <br>  requiring remand") (emphasis supplied); Singh v. INS, 94 F.3d <br>  1353, 1361 (9th Cir. 1996) (holding that "because the BIA <br>    never applied the regulatory presumptions, we think it <br>  appropriate to remand"); Tarvand v. INS, 937 F.2d 973, 977 <br>  (4th Cir. 1991) ("When an alien's request for asylum has been <br>   erroneously evaluated by application of the [wrong legal <br>             standard], remand is appropriate."). <br>      To be sure, in some cases the record may be so pellucid that <br>  remand would be an empty exercise.  But, I see no indication <br>  that this is such a case.  Though the petitioner probably <br>  could not put forth any additional proof, I have every reason <br>  to believe that, in this very fluid situation, the INS might <br>  well bring forward material evidence to rebut the presumption <br>   that operates in Fergiste's favor.  In my judgment, this <br>  uncertainty necessitates a more open-ended remand than the <br>                majority is willing to grant. <br>      The majority notes that a more open-ended remand would give <br>    the INS an opportunity to muster evidence to rebut the <br>  presumption in favor of the petitioner.  Fair enough   but it <br>  will also serve to document the true state of affairs.  In <br>   the last analysis, the fact that the parties will have a <br>   second bite of the apple is a byproduct of virtually all <br>  remand orders that entail further factfinding, and thus, not <br>  entitled to much weight.  If the BIA believes the record is <br>  adequate to permit a principled decision, that is their call <br>                     to make - not ours. <br>      Because the court takes too much upon itself, and leaves too <br>  little to the Board, I respectfully dissent from so much of <br>  the opinion as forecloses the INS from attempting to show <br>  that Fergiste has no legally sufficient basis for a well- <br>  founded fear of future persecution should he be returned to <br>                            Haiti. <br>                                 <br>                                 </pre>

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