Filed: Mar. 25, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-25-2004 Theoford v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1832 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Theoford v. Atty Gen USA" (2004). 2004 Decisions. Paper 913. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/913 This decision is brought to you for free and open access by the Opinion
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 3-25-2004 Theoford v. Atty Gen USA Precedential or Non-Precedential: Non-Precedential Docket No. 03-1832 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Theoford v. Atty Gen USA" (2004). 2004 Decisions. Paper 913. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/913 This decision is brought to you for free and open access by the Opinions..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
3-25-2004
Theoford v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1832
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Theoford v. Atty Gen USA" (2004). 2004 Decisions. Paper 913.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/913
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1832
___________
RAMOND THEOFORD,
Petitioner
v.
JOHN ASHCROFT, ATTORNEY GENERAL
OF THE UNITED STATES OF AMERICA;
TOM RIDGE, SECRETARY OF DEPARTMENT
OF HOMELAND SECURITY,
Respondents
__________
ON APPEAL FROM THE BOARD OF IMMIGRATION APPEALS
(No. A77-871-920)
___________
ARGUED MARCH 11, 2004
BEFORE: SLOVITER and NYGAARD, Circuit Judges.
and SHADUR,* District Judge.
(Filed: March 25, 2004)
* Honorable Milton I. Shadur, Senior District Judge for the United States
District Court for the Northern District of Illinois, sitting by designation.
Joseph C. Hohenstein, Esq. (Argued)
Nationalities Service Center
1300 Spruce Street
Philadelphia, PA 19107
Counsel for Petitioner
Colette J. Winston, Esq. (Argued)
Linda S. Wernery, Esq.
John M. McAdams, Jr., Esq.
United States Department of Justice Office
of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
Counsel for Respondents
___________
OPINION OF THE COURT
___________
NYGAARD, Circuit Judge.
Ramond Theoford, a Haitian citizen, petitions for review of the Immigration
Judge’s (“IJ”) decision, affirmed without opinion by the Board of Immigration Appeals
(“BIA”), denying him asylum, withholding of removal, relief under the United Nations
Convention Against Torture, and voluntary departure. The issue before us is whether the
IJ erred by denying relief. Applying a deferential standard of review, we will deny
Theoford’s petition.
I.
Because the facts are known to the parties, we review them only briefly.
Theoford claims that in Haiti on September 20, 1999, he and his brother were hijacked
2
and taken to a remote location where they were separated and interrogated. According to
Theoford, he was beaten, stabbed, and held captive for three days and asked “if [his]
brother was involved in gun trafficking.” Admin. R. at 77, 197-98. Theoford has not
seen his brother since, and assumes that he was killed. Shortly after that incident,
Theoford was told by his neighbors that the men had returned to his home and were
asking questions about his whereabouts. As a result, Theoford decided to flee Haiti.
Upon arriving in the United States, Theoford applied for asylum.
According to Theoford, the men who held him captive were members of
then-President Jean-Bertrand Aristide’s Lavalas party. Theoford alleges they were
motivated by anger at his brother for being loyal to the opposition party. Theoford
contends his captors imputed his brother’s political beliefs to him and, as a result,
persecuted him.
Theoford’s application for asylum based on politically motivated
persecution came before the IJ, who found that he was credible as to the date he entered
the United States, but otherwise lacked credibility. See Admin. R. at 79 (“The
Immigration Court is unable to certify that the respondent has provided a truthful account
of what occurred to him in Haiti.”). The IJ thought it was “significant that he was
completely unable to specify who the men were who allegedly abducted him and his
brother,” and noted that Theoford initially did not identify the assailants as members of
the Haitian government. Id. The IJ found it was likely that Theoford’s brother’s gun
3
trafficking, rather than his political beliefs, motivated the capture and assault. Id. at 81-
82. Thus, the IJ denied Theoford asylum, withholding of removal, relief under the United
Nations Convention Against Torture, and voluntary departure. The BIA summarily
affirmed.
II.
Because the BIA deferred to the IJ, we review the IJ’s opinion. Mulanga v.
Ashcroft, 349 F.3d 123, 131 (3d Cir. 2003). We have jurisdiction pursuant to 8 U.S.C. §
1252(a)(1) and review for substantial evidence.
Id. We will reverse “‘only if there is
evidence so compelling that no reasonable factfinder could conclude as the [IJ] did.’”
Id.
(quoting Kayembe v. Ashcroft,
334 F.3d 231, 234 (3d Cir. 2003)).
III.
Despite Theoford’s arguments to the contrary, we conclude that substantial
evidence supported the IJ’s finding that Theoford did not demonstrate past persecution or
a well-founded fear of future persecution. Faced with Theoford’s own concession that
during the interrogation he was asked “if [his] brother was involved in gun trafficking”
and his failure to identify particular individuals within the Lavalas party as his captors,
the IJ reasonably found that Theoford had not made the threshold showing of persecution
to support his asylum application. See Lin v. INS, 238 F.3d 239, 243 (3d Cir. 2001)
(citing 8 U.S.C. §§ 1158(a) and 1101(a)(42)(A), which make an immigrant eligible for
4
asylum only where he shows persecution “on account of race, religion, nationality,
membership in a particular social group or political opinion”) (emphasis added).
In light of recent events in Haiti, we requested supplemental briefing on the
effect, if any, of those events on Theoford’s petition for review. We conclude that current
events cannot factor into our decision, as we are not able to consider changed
circumstances in the first instance.1 See 8 U.S.C. § 1252(b)(4)(A); see also Sewak v. INS,
900 F.2d 667, 673 (3d Cir. 1990) (“Congress has expressly limited our determination of
petitions for review of orders of deportation solely to the administrative record and the
appropriately supported findings of fact made below.”). Likewise, we are statutorily
barred from remanding to the BIA or the IJ for the taking of additional evidence. 8
U.S.C. § 1252(a)(1). Should he believe that the changed circumstances in Haiti warrant a
change in his status, Theoford should file a motion to reopen in the immigration courts.
Finally, Theoford’s constitutional challenge to the BIA’s use of summary
affirmance procedure fails. Dia v. Ashcroft, 353 F.3d 228, 245 (3d Cir. 2003) (en banc).
Assuming, without deciding, that we have jurisdiction to consider Theoford’s argument
1. Even if we were to consider evidence that was not available to the IJ at the time
of his decision, that information would not change our result. Theoford has failed to
provide the critical link between the generalized politically motivated violence in Haiti
and the incident he experienced. New evidence might have probative value on the
prevalence of politically motivated violence in Haiti, but would not furnish this missing
link.
5
that it was error to apply that procedure in this case, we conclude that the regulatory
criteria were met. 8 C.F.R. § 1003.1(e)(4).
IV.
For the reasons set forth, we will deny Theoford’s petition for review.
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