United States Court of Appeals For the First Circuit

No. 20-1201

JACKY CELICOURT,

Petitioner,

v.

WILLIAM P. BARR,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Thompson, Boudin, and Kayatta, Circuit Judges.

Melanie Chaput, with whom Chaput Law Office was on brief, for petitioner. Vanessa M. Otero, Trial Attorney, U.S. Department of Justice, Office of Immigration Litigation, Jeffrey Bossert Clark, Acting Assistant Attorney General, Anthony P. Nicastro, Assistant Director, Office of Immigration Litigation, on brief for respondent.

November 17, 2020 BOUDIN, Circuit Judge. Jacky Celicourt ("Celicourt"),

a citizen of Haiti, petitions this Court to review a Board of

Immigration Appeals ("BIA") decision to deny Celicourt's requests

for asylum and withholding of removal under the Immigration and

Naturalization Act ("INA") and for protection under the Convention

Against Torture ("CAT").

Celicourt's claims in this case stem from an incident in

Haiti on November 2, 2017 when, he alleges, a Jeep was waiting for

him as he left his mother's home and tried to run him over. As he

hid under another car, the Jeep's occupants shot at him and yelled

that they would "get" him anyway. Celicourt went to the police

but could not identify the assailants. Celicourt thinks that they

were members of the Tèt Kale political party, which opposes his

political views.

On March 12, 2018, Celicourt entered the United States

with a visitor's visa. He overstayed, and on January 24, 2019, he

was ordered to appear before an Immigration Judge. In the hearing,

Celicourt made three arguments. First, in support of asylum, he

claimed that he was a refugee "unable or unwilling to return to,

and ... unable or unwilling to avail himself or herself of the

protection of, [his home] country" due to his membership in the

Pitit Dessalin party and his political opinions.

(a)(42)(A), 1158(b)(1)(A). Second, he argued that his "life

or freedom would be threatened" in Haiti on account of his

‐2‐ political participation in the Pitit Dessalines and thus that he

was eligible for withholding of removal.

(b)(3)(A).

Finally, Celicourt contended that it was "more likely than not"

that he would be tortured if he were removed to Haiti and therefore

that the United States had an obligation under Article 3 of CAT

not to remove him.

(c)(4).

The Immigration Judge found that Celicourt was a

credible witness but that his claim of being attacked "on account

of a protected ground," such as his participation in the Pitit

Dessalines, was "essentially based on speculation and conjecture."

Similarly, the court found that "specific grounds [for believing

Celicourt would be subjected to torture] do not exist." The court

then denied his petition, and, on appeal, the BIA agreed.

"We review an [Immigration Judge's] findings of fact,

including the determination of whether persecution occurred on

account of a protected ground, under the familiar and deferential

substantial evidence standard." Ivanov v. Holder,

(1st Cir. 2013) (internal citation omitted). Under that standard,

"the administrative findings of fact are conclusive unless any

reasonable adjudicator would be compelled to conclude to the

contrary."

(b)(4)(B).

Asylum. For the purposes of asylum relief, "[t]he burden

of proof is on the applicant to establish that the applicant is a

refugee."

(b)(1)(B)(i). The applicant can "satisfy

‐3‐ this obligation by showing that she has been persecuted in the

past on account of [race, religion, nationality, membership in a

particular social group, or political opinion] or, alternatively,

that a well-founded fear of future persecution on such a ground

exists." Lopez de Hincapie v. Gonzales,

(1st

Cir. 2007).

Regardless of whether the applicant attempts to show

past or future persecution, the applicant must show (1) serious

harm (either past or anticipated); (2) that the harm occurred or

will occur "on account of" race, religion, nationality, membership

in a particular social group, or political opinion (the "nexus"

requirement); and (3) a connection between the harm and government

action or inaction. See Aguilar-De Guillen v. Sessions,

(1st Cir. 2018). "[A]n inability to establish any one of

the three elements of persecution will result in a denial of the

asylum application."

(internal citation omitted).

Celicourt testified that he could not identify his

attackers. "[I]n the absence of a positive identification,"

Celicourt was required "to furnish some credible evidence of the

motivation underlying the threats." Lopez de Hincapie,

. Here, his attorney stated that Celicourt thought his

assailants were attacking him due to his political activity because

"[t]here was no other motivation except for his political

activity." That is not enough. Because Celicourt could not

‐4‐ establish a nexus between the 2017 attack and a protected ground,

his petition was properly denied.

Celicourt also argues that in Haiti there is a pattern

of persecution of members of Pitit Dessalines by members of the

ruling Tèt Kale party such that he should be granted refugee status

due to his "well-founded fear of persecution."

(b)(2). But federal regulations require "a reasonable

likelihood of persecution of all persons in the group." Sosa-

Perez v. Sessions,

(1st Cir. 2018) (internal

citation omitted). Haiti's political violence, said the BIA, was

not so widespread to "establish that similarly situated persons to

the respondent are persecuted by [Tèt Kale]." The record does not

compel a different conclusion.

Withholding of Removal. To make out a claim for

withholding of removal, Celicourt "bears the burden of

establishing his eligibility . . . by demonstrating that it is

'more likely than not' that he will be persecuted on account of

one of the five protected grounds if removed" to Haiti. Hernandez-

Lima v. Lynch,

(1st Cir. 2016). Like a request

for asylum, a claim for withholding of removal requires a "nexus"

between the alleged persecution and one of the statutorily

protected grounds. See

(b).

In Hernandez-Lima, the petitioner "offered only an

unsupported theory that any harm he suffered was on account of a

‐5‐ protected ground."

. As in Hernandez-Lima,

Celicourt testified that he did not know who shot at him and

provided only an unsupported theory of their motivation. He needed

something more to prove a nexus.

Convention Against Torture. To be eligible for CAT

relief, Celicourt must show that, "more likely than not," he will

be tortured if he returns to Haiti.

(c)(2).

Torture is defined as "any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person

. . . by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity."

(a)(1). We review a denial

of CAT protection under the substantial evidence rubric. Lopez de

Hincapie,

.

Celicourt did not put forward any proof that he was, or

might in the future be, attacked by "state actors or alternatively,

that the authorities would be in some way complicit (or, at least,

acquiescent) in the torture."

. His only proof of state

actor involvement is that the Tèt Kale party was in power at the

time of his incident.

Moreover, Celicourt testified that, after he was

attacked in 2017, he filed a police report with local authorities.

Although that report did not result in any arrests, a failed

investigation does not automatically constitute acquiescence.

‐6‐ Thus, the record does not compel a conclusion that a state actor

acquiesced to or was responsible for the 2017 incident or that,

"more likely than not," state actors would be complicit in

torturing Celicourt in the future.

The petition is denied.

‐7‐