FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

AUG 28, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 05-17058

Non-Argument Calendar

________________________

Agency No. A76-410-736

PIERRE A. DANIEL, 

Petitioner, 

versus 

U.S. ATTORNEY GENERAL, 

Respondent. 

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_________________________

(August 28, 2006)

Before BIRCH, CARNES and PRYOR, Circuit Judges.

PER CURIAM:
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Pierre A. Daniel, through counsel, petitions for review of an order issued by

the Bureau of Immigration Appeals (“BIA”) dismissing his appeal from the denial

by the immigration judge (“IJ”) of his claim for withholding of removal under the

Immigration and Nationality Act (“INA”). The BIA concluded that country

conditions had changed such that former anti-military demonstrators like Daniel

would not be singled out for persecution. Because substantial evidence in the

record supports this conclusion, we DENY the petition.

I. BACKGROUND

In September 1993, Daniel, a native and citizen of Haiti, arrived in the

United States without being properly admitted or paroled. He had fled Haiti after

he was beaten by the military for organizing an anti-military protest. In 1998, he

sought asylum and withholding of removal. The order we consider was issued by

the BIA in November 2005, following an appeal from the IJ’s denial of Daniel’s

application for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading

Treatment or Punishment (“CAT”).

The BIA’s order observed that Daniel’s past persecution had come at the

hands of the Haitian military and that the military had been disbanded in 1995. 
 Daniel does not raise any challenge in his appellate brief to the denial of his asylum 1

claim as untimely or to the denial of his claim for relief under CAT. Accordingly, he has

abandoned these issues. See Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir.

2005) (per curiam).

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The BIA acknowledged that there was still crime and violence in Haiti but that

there was insufficient evidence to establish that Daniel had an objectively

reasonable basis to believe that he would be sought out for future persecution

based on his membership in a particular social, political, or religious group. The

BIA concluded that there was insufficient evidence to find the current country

conditions were such that Daniel would more likely than not face persecution or

torture upon his return to Haiti.

On appeal, Daniel argues that the BIA erred in holding (1) that the evidence

showed that the country conditions have changed in Haiti since he fled in 1993,

and (2) that, as a result of these changed conditions, he no longer has a reasonable

fear of persecution at the hands of the former Haitian military. Daniel also asserts 1

that the BIA violated his due process rights by taking judicial notice of alleged

changed conditions in finding that he was not more likely than not to be tortured

upon his return, while failing take notice of the articles he attached to his BIA brief

showing that the former Haitian military was continuing to wreak havoc.
 The scope of our appellate review is limited to the administrative record on which the 2

IJ’s order of removal is based. 8 U.S.C. § 1252(b)(4)(A); see also In re Fedorenko, 19 I. & N.

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II. DISCUSSION

When the BIA issues a decision, we review only that decision, “except to the

extent that the BIA expressly adopts the IJ’s” decision. Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA did not expressly adopt the

IJ’s decision, instead relying on its own reasoning. Therefore, we review only the

BIA’s decision. “To the extent that the BIA’s decision was based on a legal

determination, [our] review is de novo.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 817 (11th Cir. 2004). 

The BIA’s factual determinations are reviewed under the substantial

evidence test, and this Court must affirm the BIA’s decisions “if [they are]

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Al Najjar, 257 F.3d at 1284 (citation and quotations

omitted). The substantial evidence test is “deferential” and does not allow

“re-weigh[ing] the evidence from scratch.” Mazariegos v. Office of U.S. Att’y

Gen., 241 F.3d 1320, 1323 (11th Cir. 2001) (quotations omitted). “To reverse the

. . . fact findings, we must find that the record not only supports reversal, but

compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).2
Dec. 57, 74 (BIA 1984) (holding that it was inappropriate for the BIA to accept new evidence

proffered by the respondent that was not before the IJ because the BIA was “an appellate body

whose function [was] to review, not to create, a record”). Furthermore, we conclude that,

contrary to Daniel’s claim, the evidence shows that the BIA, in its decision, did not take judicial

notice of the changed conditions in Haiti, but instead relied on the evidence included in the

administrative record. Thus, the BIA did not violate Daniel’s due process rights by refusing to

review documents that were not included in the administrative record compiled by the IJ. See 8

U.S.C. § 1252(b)(4)(A); In re Fedorenko, 19 I. & N. Dec. at 74.

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To qualify for withholding of removal under the INA, an alien must show

that, if returned to his country, “the alien’s life or freedom would be threatened” on

account of “race, religion, nationality, membership in a particular social group, or

political opinion.” 8 U.S.C. § 1231(b)(3). “An alien bears the burden of

demonstrating that he more-likely-than-not would be persecuted or tortured upon

his return to the country in question.” Mendoza, 327 F.3d at 1287. If a petitioner

is unable to meet the standard of proof “for asylum, he is generally precluded from

qualifying for . . . withholding of removal. Al Najjar, 257 F.3d at 1292–93. 

Where an alien has established past persecution in his country on account of

a statutorily protected ground,

it is presumed that his life or freedom would be threatened upon return

to his country unless the INS shows by a preponderance of the

evidence that, among other things, (1) the country’s conditions have

changed such that the applicant’s life or freedom would no longer be

threatened upon his removal; or (2) that the alien could avoid a future

threat to his life or freedom by relocating to another part of the

proposed country of removal, and it would be reasonable to expect

him to do so.
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Mendoza, 327 F.3d at 1287. Nevertheless, even an alien who has not shown past

persecution may still be entitled to withholding of removal “if he can demonstrate

a future threat to his life or freedom on a protected ground in his country.” Id.

(citing 8 C.F.R. § 208.16(b)(2)). An alien need not show that he would be singled

out for persecution if he establishes that in his home country “there is a pattern or

practice of persecution of a group of persons similarly situated to [him] on account

of [a protected ground].” 8 C.F.R. § 208.16(b)(2)(i). If the threat of violence

equally affects all people in a country, without regard for their membership in a

group or class recognized by the INA, then that general threat of violence “will not

support a finding of a well-founded fear of persecution.” Palma-Mazariegos v.

Gonzales, 428 F.3d 30, 37 (1st Cir. 2005).

A review of the record shows that the BIA’s finding of changed conditions is

supported by substantial evidence. While the evidence reveals that Haiti suffers

from abject poverty and violence, there is no indication that members of the former

military would single out Daniel for persecution on account of his 1993

anti-military activities; that is, there is insufficient support for a belief that the

threat of violence is greater for people in Daniel’s identified social, political, or

religious class. Thus, Daniel has failed to establish that members of the former
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military will engage in a pattern or practice of targeting its circa-1993 opponents

on account of a statutorily protected ground. 

III. CONCLUSION

Daniel has petitioned us to review the BIA’s order dismissing his appeal

from the IJ’s denial of his claim for withholding of removal under the INA. The

BIA concluded that country conditions had changed such that former anti-military

demonstrators would not be singled out for persecution. Because substantial

evidence in the record supports this conclusion, we DENY the petition.