Fergiste v. INS
Case Date: 03/12/1998
Court: United States Court of Appeals
Docket No: 97-1851
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For the First Circuit ____________________ No. 97-1851 NICKEN FERGISTE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. ____________________ ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS ____________________ Before Selya, Stahl and Lynch, Circuit Judges. ____________________ David S. Clancy with whom Deborah E. Anker was on brief for petitioner. Karen Ann Hunold, Attorney, with whom Frank W. Hunger, Assistant Attorney General, and Linda S. Wendtland, Senior Litigation Counsel, Office of Immigration Litigation, United States Department of Justice, were on brief for respondent. ____________________ March 12, 1998 ____________________ STAHL, Circuit Judge. Petitioner Nicken Fergiste appeals a Board of Immigration Appeals ("Board" or "BIA") decision affirming a final order of exclusion, denying him political asylum and withholding of deportation. The Board found that changed country conditions in Haiti had obviated any need for political asylum. Because the Board failed to apply, and the Immigration and Naturalization Service ("INS") failed to rebut, a presumption that petitioner had a reasonable fear of persecution in the future if he were to return to Haiti, we reverse and remand the case to the Board. I. FACTS AND PRIOR PROCEEDINGS Fergiste seeks political asylum under section 208(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1158(a), and withholding of deportation under section 243(h) of the INA, 8 U.S.C. 1253(h), on the basis that he has suffered political persecution in his home country of Haiti and that such persecution will resume if he returns to Haiti. Fergiste's testimony, affidavit, and asylum application showed the following facts. Fergiste was born in Port-au- Prince, Haiti, on April 17, 1966. He worked as a fork lift driver for the port authority, a supervisor on a merchant ship managed by his cousin, and an accountant. From 1979 until the early 1980s, Fergiste attended and participated in activities at the St. Jean Bosco Church, where Jean-Bertrand Aristide preached reform. He also attended meetings of the National Front for Change and Democracy ("FNCD"), Aristide's political party, and helped to campaign and raise money for Aristide's bid to be president of Haiti. In addition, Fergiste worked with a "neighborhood committee" that, apparently, was both devoted to community improvement and involved with politics, and "Family is Your Life," an organization dedicated to helping orphans. In 1990, on the day Aristide was elected president, the FNCD assigned Fergiste to monitor for fairness a Port-au-Prince polling booth. Fergiste believes that, as a result of his open support of Aristide and his friendship with another Aristide supporter, Pierre Charles, he became a target of political persecution by the Ton-Ton Macoutes, a paramilitary group that protected the Duvalier dictatorship until 1986 when the Duvaliers were deposed. He also believes that he was targeted by military "attach |