10-109-ag

Lespinasse v. Holder

BIA

Straus, IJ

A079 474 502

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

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At a stated term of the United States Court of Appeals

for the Second Circuit, held at the Daniel Patrick Moynihan

United States Courthouse, 500 Pearl Street, in the City of

New York, on the 3 day of February, two thousand eleven. rd

PRESENT:

BARRINGTON D. PARKER,

REENA RAGGI,

DENNY CHIN,

Circuit Judges. 

______________________________________

REYNALD TOUTOU LESPINASSE,

Petitioner, 

10-109-ag

 v. NAC

ERIC H. HOLDER, JR., UNITED STATES 

ATTORNEY GENERAL,

Respondent.

______________________________________

FOR PETITIONER: Elyssa N. Williams, New Haven,

Connecticut.

FOR RESPONDENT: Tony West, Assistant Attorney

General; Anthony C. Payne, Senior

Litigation Counsel; Lance L. Jolley,

Trial Attorney, Office of

Immigration Litigation, Civil

Division, United States Department

of Justice, Washington, D.C.
2

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is DENIED.

Petitioner Reynald Toutou Lespinasse, a native and

citizen of Haiti, seeks review of a December 18, 2009, BIA

order affirming the February 1, 2008, decision of

immigration judge (“IJ”) Michael W. Straus pretermitting his

application for asylum and denying his application for

withholding of removal and relief under the Convention

Against Torture (“CAT”). In re Reynald Toutou Lespinasse,

No. A079 474 502 (B.I.A. Dec. 18, 2009), aff’g No. A079 474

502 (Immig. Ct. Hartford, Conn. Feb. 1, 2008). We assume

the parties’ familiarity with the underlying facts and

procedural history of the case.

Under the circumstances of this case, we review both

the IJ’s and the BIA’s decision. See Zaman v. Mukasey, 514

F.3d 233, 237 (2d Cir. 2008). We review the BIA’s factual

findings for substantial evidence, treating those findings

as conclusive unless a reasonable adjudicator would be

compelled to conclude to the contrary, and review questions

of law de novo. See 8 U.S.C. § 1252(b)(4)(B); see also
3

Yanqin Weng v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). 

As a preliminary matter, Lespinasse failed to exhaust

any challenge to the IJ’s pretermission of his asylum

application by not raising that issue before the BIA. See

Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004). Lespinasse

also does not raise the issue in his brief to this Court. 

As a result, Lespinasse’s asylum claim is precluded from

review.

In any event, the BIA did not err in determining that

Lespinasse failed to establish that the harm he suffered was

on account of a protected ground. 8 U.S.C. § 1101(a)(42). 

Lespinasse first argues that he demonstrated that Lavalas

gang members attacked him due to the political opinion they

imputed to him from Mr. Bazile, the chief of police and head

of the anti-gang unit for whom Lespinasse worked as an

informant. Substantial evidence, however, supports the

agency’s determination that petitioner was targeted for

helping the police arrest criminals rather than for an

imputed political opinion. Lespinasse testified that he was

paid to provide information regarding gang-related crimes

and that the gang knew he worked with the police. Although

Lespinasse testified that gang members wished to wait until
 Petitioner’s reliance on Castro v. Holder, 597 F.3d 1

93 (2d Cir. 2010), is misplaced. There, we concluded

that violence directed at a policeman who reported

government corruption to a human rights organization

could have been on account of his political opinion

because, considering the context and evidence of

widespread official corruption, his report went beyond

normal police work and was likely perceived as opposition

to the government. Id at 102-05. In contrast,

substantial evidence in this case supported the agency’s

determination that the gang retaliated against Lespinasse

for his normal work as an informant, and not for any

perceived political opposition to the Levalas party. 

4

President Aristide came into power before inflicting further

harm on him, indicating that they would be less fearful of

prosecution at that time, a persecutor must be motivated by

his perception of the applicant’s political opinion, rather

than merely by his own opinion. See INS v. Elias-Zacarias,

502 U.S. 478, 482 (1992); Yueqing Zhang v. Gonzales, 426

F.3d 540, 545 (2d Cir. 2005). 

1

The agency also properly concluded that Lespinasse’s

police informant status did not establish membership in a

particular social group because “a person who agrees to work

as a government informant in return for compensation takes a

calculated risk and is not in a position to claim refugee

status should such risks materialize.” In re C-A-, 23 I. &

N. Dec. 951, 958 (B.I.A. 2006). Furthermore, Lespinasse

failed to demonstrate that he was not merely singled out
5

“because of his role in disrupting particular criminal

activity.” Koudriachova v. Gonzales, 490 F.3d 255, 261-62

(2d Cir. 2007); see also Ucelo-Gomez v. Mukasey, 509 F.3d

70, 73 (2d Cir. 2007) (noting that harm attributable to

ordinary criminal incentives militates against finding

particular social group). 

Moreover, even if petitioner had established past

persecution, we would identify no error in the IJ’s

conclusion that the government rebutted the presumption of

future persecution. Contrary to Lespinasse’s assertion, the

IJ correctly placed the burden on the government to

demonstrate by a preponderance of evidence that petitioner

no longer has a reasonable fear of future persecution

because of changed country conditions. See In re Reynald

Toutou Lespinasse, No. A079 474 502 (Immig. Ct. Hartford,

Conn. Feb. 1, 2008), at 9; see also Dong Zhong Zheng v.

Mukasey, 552 F.3d 277, 284 (2d Cir. 2009). Applying this

standard, substantial evidence supports the IJ’s finding of

changed circumstances when the 2006 U.S. State Department

Report in evidence stated that President Aristide resigned

and left Haiti in 2004, a new government was elected in

2006, and that while criminal gangs remain prevalent, the
6

government’s ability to prevent gang violence was improved. 

Accordingly, we deny the petition for review of the agency’s

denial of the asylum and withholding of removal claims. 

Finally, the BIA did not err in concluding that

Lespinasse failed to establish a likelihood that he would be

tortured by or with the consent or acquiescence of the

Haitian government. See 8 C.F.R. §§ 208.18(a)(1),

1208.18(a)(1); see also Khouzam v. Ashcroft, 361 F.3d 161,

168-71 (2d Cir. 2004) (“[I]n terms of state action, torture

requires only that government officials know of or remain

willfully blind to an act and thereafter breach the legal

responsibility to prevent it.”). As the BIA noted, the 2006

State Department Report indicated that the Haitian

government “is trying to suppress gang-related violence and

violence by militant political groups.” 2006 U.S. Dep’t of

State Country Report on Human Rights Practices at 1; see

Xiao Ji Chen v. U.S. Dep’t of Justice, 471 F.3d 315, 342 (2d

Cir. 2006) (noting that weight afforded to applicant’s

evidence lies largely within discretion of agency); see also

Jian Hui Shao v. Mukasey, 546 F.3d 138, 171 (2d Cir. 2008)

(“We do not ourselves attempt to resolve conflicts in record

evidence, a task largely within the discretion of the
7

agency.”). 

For the foregoing reasons, the petition for review is

DENIED. As we have completed our review, any stay of

removal that the Court previously granted in this petition

is VACATED, and any pending motion for a stay of removal in

this petition is DISMISSED as moot. Any pending request for

oral argument in this petition is DENIED in accordance with

Federal Rule of Appellate Procedure 34(a)(2), and Second

Circuit Local Rule 34.1(b).

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk