United States 11th Circuit Court of Appeals Reports


CLERVEAU v. U.S. ATTY. GENERAL, 06-12959 (11th Cir.
1-3-2007) MARC CLERVEAU, Petitioner, v. U.S. ATTORNEY
GENERAL, Respondent. No. 06-12959 Non-Argument Calendar,
Agency No. A78-582-980. United States Court of Appeals,
Eleventh Circuit. January 3, 2007.

[EDITOR’S NOTE: This case is unpublished as indicated by the
issuing court.] Petition for Review of a Decision of the
Board of Immigration Appeals.

Before BLACK, MARCUS and KRAVITCH, Circuit Judges.


Marc Clerveau, a native and citizen of Haiti, entered the
United States on or about August 23, 2000, without being
admitted or paroled, and the INS[fn1] issued a notice to
appear, charging him with removability under INA §
212(a)(6)(A)(i); 8 U.S.C. § 1182(a)(6)(A)(i).
Clerveau applied for asylum relief, and requested
withholding of removal and relief under the United Nations
Convention Against Torture (“CAT”).

At the hearing before an Immigration Judge, Clerveau
conceded his removability and testified as follows: He had
been a police officer in Haiti since 1995, working in
Port-Au-Prince and Cit Soleil. In July 1999, Lavales
members tried to recruit him to join the party, but he
refused and was threatened as a result. In April 2000, while
Clerveau was not home, several men drove by his home and
shot at the house. Based on a description by his neighbor,
Clerveau knew the shooters were men he had arrested in the
past. While on patrol in July 2000, he and his partner
stopped to change a flat tire and two men — Ronald
Cadavre and Charles Francoeur — drove by and fired
at them. One bullet struck Clerveau’s radio and pieces
ricocheted into his leg. Both Clerveau and his partner
filed police reports, but the police commissioner informed
them that no one would be arrested for the incident. That
same evening, both Clerveau and his partner received
threatening phone calls. The following day, Clerveau and
his partner resigned and fled the country.

Clerveau admitted that there were inherent risks in being a
police officer, and that he had suffered other incidents
that he did not mention because of those risks. He stated
that he feared Lavales would kill him if he returned.
Clerveau offered his partner’s testimony to corroborate,
but the IJ stated that it was unnecessary because Clerveau’s
testimony was credible.

Clerveau submitted supporting evidence including (1) a
police report from the shooting; (2) the State Department
Country Reports from 2001 and 2003, indicating that Cadavre
had not been arrested despite being tied to various murders
and that Lavales members are not constrained by police and
criminals act with impunity; and (3) a State Department
press statement from 2004 in which the U.S. government
noted that pro-government forces had killed policemen.

The IJ denied relief, finding that the attacks were not “on
account of” an enumerated ground, and therefore, Clerveau
had not shown that he suffered persecution. The IJ further
found that there had been changes in the Haitian government
since Clerveau left the country. Clerveau appealed to the
Board of Immigration Appeals (“BIA”), arguing that the
shooting qualified as persecution and that his work as a
police officer was an immutable characteristic for which he
was persecuted. He also noted that the unrest and violence
continued, making it unsafe for him to return. The BIA
summarily affirmed. Clerveau now petitions this court for

Clerveau argues that the IJ erroneously concluded that he
did not suffer from persecution because he was shot by
Lavales members in opposition to his political opinion and
this was not a normal risk associated with being a police
officer. He further asserts that the situation in Haiti has
not improved, and that he established a well-founded fear
of future persecution. He also asserts that he is a member
of a particular social group — that of former police
officers targeted by Lavales.[fn2]

Where the BIA adopts the IJ’s decision, we review the IJ’s
decision as adopted by the BIA. Silva v. U.S. Att’y Gen.,
448 F.3d 1229, 1235-36 (11th Cir. 2006); Chacon-Botero v.
U.S. Att’y Gen., 427 F.3d 954, 956 (11th Cir. 2005). To the
extent that the IJ’s decision was based on a legal
determination, we review the decision de novo. Ruiz v. U.S.
Att’y Gen., 440 F.3d 1247, 1254 (11th Cir. 2006); D-Muhumed
v. U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004). The
IJ’s factual determinations are reviewed under the
substantial evidence test, and this court “must affirm the
[IJ’s] decision if it is supported by reasonable,
substantial, and probative evidence on the record
considered as a whole.” Al Najjar v. Ashcroft, 257 F.3d
1262, 1283-84 (11th Cir. 2001) (quotation and internal
marks omitted). Additionally, “[u]nder the substantial
evidence test, we review the record evidence in the light
most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Ruiz, 440
F.3d at 1255. Thus, “a finding of fact will be reversed
only when the record compels a reversal; the mere fact that
the record may support a contrary conclusion is not enough
to justify a reversal of the administrative findings.” Id.
(quotation omitted).

The Attorney General has discretion to grant asylum if an
alien meets the INA’s definition of “refugee.” INA §
208(b)(1), 8 U.S.C. § 1158(b)(1). The INA defines
“refugee” as follows:

[A]ny person who is outside any country of such person’s
nationality . . . and who is unable or unwilling to return
to, and is unable or unwilling to avail himself or herself
of the protection of, that country because of persecution
or a well-founded fear of persecution on account of . . .
political opinion. . . .

8 U.S.C. § 1101(a)(42)(A) & (B) (emphasis added). The
asylum applicant bears the burden of proving refugee
status. Al Najjar, 257 F.3d at 1284. To meet this burden,
the alien must, with specific and credible evidence,
establish (1) past persecution on account of a statutorily
listed factor, or (2) a “well-founded fear” that the
statutorily listed factor will cause such future
persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar,
257 F.3d at 1287. “Only in a rare case does the record
compel the conclusion that an applicant for asylum has
suffered past persecution or has a well-founded fear of
future persecution.” Silva, 448 F.3d at 1239.

Here, even assuming that the shooting incident constituted
“persecution,” Silva, 448 F.3d at 1238, the issue is whether
the persecution was “on account of” Clerveau’s political
opinion. The IJ concluded that it was not. We agree.

We cannot say that the IJ erred in finding that a police
officer’s refusal to join Lavales members constituted
persecution on account of the officer’s political
opinion.[fn3] Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 438
(11th Cir. 2004) (explaining that persecution due to refusal
to join guerilla forces is not persecution on account of a
political opinion). The record reflects that Clerveau
received numerous threats to join Lavales, but he did not
feel the need to leave Haiti until the shooting. Moreover,
Clerveau conceded that there were inherent risks in police
work. And, although the country reports indicate the
widespread violence and Lavales’s tendency to murder
policemen, there is no evidence that this is related to a
political opinion.

Accordingly, Clerveau cannot show that he was persecuted on
account of his political opinion, and the IJ properly
denied asylum relief. Therefore, we DENY the petition.

[fn1] In 2002, President Bush signed into law the Homeland
Security Act, which created a new Department of Homeland
Security and abolished the INS, transferring its
responsibilities to the new department. Because the case
initiated before the transfer, we refer to the INS.

[fn2] Clerveau raises his claim that he is a member of a
particular social group — i.e. former policemen
— for the first time on appeal. Because he did not
raise this issue before the BIA, he has not exhausted it,
and we need not consider it. Amaya-Artunduaga v. U.S. Att’y
Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). Additionally,
Clerveau does not argue that the IJ erred by denying
withholding or CAT relief. Therefore, he has abandoned
those issues. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226,
1228 (11th Cir. 2005).

[fn3] In a recent unpublished opinion, which is not binding,
this court rejected an identical claim, concluding that
persecution of a police officer by Haitian rebels was not
“on account of” a political opinion. See Dorisme v. U.S.
Att’y Gen., 2006 WL 2671931, at *4 (11th Cir. Sept. 19,
2006) (unpublished).