* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 8 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JEAN RONALD SAUVEUR, also known as Michel Urie,

Petitioner,

v. JOHN ASHCROFT,

Respondent. No. 02-9584 (BIA No. A77-003-389) (Petition for Review)

ORDER AND JUDGMENT *

Before HENRY , MURPHY , and TYMKOVICH , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. Jean Ronald Sauveur petitions for review of a decis ion of the Bureau of Immigration Appeals (BIA) affirming the immigrationjudge (IJ)’s order denying-2-

his application for asylum, withholding of deportat ion, and relief under the Convention Against Torture. We have jurisdiction p ursuant to 8 U.S.C. § 1252(a)(2)(ii), and deny the petition. Sauveur is a citizen and native of Haiti, who attempted to enter the United States in 1999 using a false passport. He has conc eded removability from this country. At the hearing before the IJ, Sauveur tes tified as follows: In 1990, Sauveur supported a political group known as the FNCD. This group favored Jean-Bertrand Aristide, who was elect ed president of Haiti in 1991. Aristide was deposed as the result of a military co up, but was returned to power three years later with the assistance of the United States Army. In October 1998, Sauveur helped organize a youth gr oup known as OGDP in Port-au-Prince, the capital of Haiti. The group was not affiliated with any political party. It started with fifteen members, and eventually grew to thirty-five members. The group sought to help youth “to be awa re of their rights, to talk about the country’s constitution” and social, econo mic and cultural issues. Admin. R. at 60. Sauveur served as its secretary. On November 10, 1998, five or six unidentified arme d men in civilian clothing forced their way into an OGDP meeting and started shooting in the air. The men beat participants at the meeting and threat ened them. Sauveur did not-3-

report this incident to the police, because he was afraid and did not know who the

men were. On December 3, 1998, an OGDP meeting was again inte rrupted by people who beat the group’s members and kidnaped their tre asurer. Sauveur was injured during the beating. The treasurer was later locate d at the local police department. After the second time an OGDP meeting was disrupted , Sauveur and other members of the OGDP wrote a letter to a police comm issioner, who promised to provide security for their future meetings. On Feb ruary 1, 1999, the OGDP held another meeting. Contrary to expectation, the poli ce did not arrive. Instead, shortly after the meeting began, a group of civilia ns arrived, accused members of OGDP of speaking against the government, and began shooting in the air and beating the OGDP members. One of this group of menapproached Sauveur, armed with a knife. Sauveur pushed the man over an d escaped through a window. He spent the next twenty days in hiding. Sauveur later learned that some men had gone to his house and beat his cousin, trying to force him to reveal Sauveur’s loc ation. Sauveur left Haiti on February 20, using a photo-switched French passportin the name of “Michel Urie.” His group, the OGDP, no longer exists in Ha iti. Sauveur raises two issues in his petition for revie w. He contends that the IJ violated his right to due process by considering an d relying upon State-4-

Department country reports that were not made part of the record. He also contends that the IJ and the BIA erred as a matter of law in finding that he failed to meet his burden of proving that he suffered pastpersecution sufficient to qualify him as a refugee. Although at the administrative level Sauveur soughtwithholding of deportation and relief under the Convention AgainstTorture, his arguments here focus exclusively on his asylum claim. To be eligi ble for asylum, an alien must first establish his status as a “refugee.” Wiransane v. Ashcroft , 366 F.3d 889, 893 (10th Cir. 2004). To establish refugee status, the applicant must dem onstrate that he has suffered past persecution or has “a well-fou nded fear of [future] persecution on account of race, religion, nationali ty, membership in a particular social group, or political opinion.” 8 U.S.C. § 11 01(a)(42)(A). “Aliens basing their asylum claims upon a well-founded fear of fut ure persecution must show both a genuine, subjective fear of persecution, and an objective basis by credible, direct, and specific evidence in the record, of fac ts that would support a reasonable fear of persecution.” Wiransane , 366 F.3d at 893 (quotation omitted). We review the BIA’s factual findings for substantia l evidence in the record. Nguyen v. INS , 991 F.2d 621, 625 (10th Cir. 1993). The BIA’s fi ndings of fact are conclusive unless the record demonstrates that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).-5-

We will not reverse the agency’s decision unless th e evidence compels the conclusion that petitioner has a well-founded fear of persecution because of one of the protected grounds. INS v. Elias-Zacarias , 502 U.S. 478, 481 n.1 (1992). Sauveur contends that the IJ erred in relying on th e 1998 and 2000 State Department Country Reports for Haiti without receiv ing them into evidence or making them available to him or his counsel at or p rior to the hearing. Sauveur did not raise this argument before the BIA. Theref ore, it is waived.
Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991). Sauveur also argues that the agency’s determination that he failed to show past persecution is not supported by substantial ev idence. He attacks findings made by both the BIA and the IJ. Since the BIA iss ued a reasoned determination rather than summarily affirming the IJ, however, ou r review is limited to the BIA’s decision. Compare Rivera-Jimenez v. INS , 214 F.3d 1213, 1216 (10th Cir. 2000) (“Our review is limited to the decision of th e BIA, and not that of the immigration judge”) with Wiransane , 366 F.3d at 897 (stating that in summary affirmance cases, this court examines IJ’s reasonin g). The BIA gave several reasons for rejecting Sauveur’ s claims of past persecution and well-founded fear of future persecution. It noted that (1) his various accounts of his problems in Haiti were not entirely consistent; (2) he had-6-

not testified to fear of Haitian governmental autho rities; (3) his group no longer exists in Haiti; (4) he escaped physical harm and f ailed to show actual past persecution; and (5) he failed to show a reasonable possibility of future persecution by non-governmental forces throughout H aiti. Sauveur contends that the BIA failed to address the lack of police protection for his group. “Persecution” under the asylum statute means not only persecution by the government but also by a non-gov ernmental group that the government is “unwilling or unable to control.” Batalova v. Ashcroft , 355 F.3d 1246, 1253 (10th Cir. 2004) (quotation omitted). S auveur does not contest the BIA’s specific finding that the attacks he describe d, regardless of who perpetrated them, did not rise to the level of past persecution . All of the attacks and threats that Sauveur received were as the result of his participation in the OGDP, which no longer exists. He fails to show that the BIA co mmitted reversible error in concluding that he had not demonstrated a well-foun ded fear of future persecution. The petition for review is DENIED. Entered for the Court

Timothy M. Tymkovich Circuit Judge