Francois Lukunku-Tshibangu v. Loretta Lynch , 652 F. App'x 180 ( 2016 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1607
FRANCOIS PIERRE LUKUNKU-TSHIBANGU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 22, 2016 Decided: June 15, 2016
Before KING, AGEE, and FLOYD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ARGUED: Mariam Masumi, JOHNSON AND ASSOCIATES, P.C., Arlington,
Virginia, for Petitioner. Andrea Gevas, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Randall L. Johnson, JOHNSON AND ASSOCIATES, P.C.,
Arlington, Virginia, for Petitioner. Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division,
John S. Hogan, Assistant Director, Mona Maria Yousif, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Francois Lukunku-Tshibangu, a citizen of the Democratic
Republic of Congo (DRC), petitions for review of an order of the
Board of Immigration Appeals (BIA) denying his application for
protection under the Convention Against Torture (CAT). Lukunku-
Tshibangu claims that if he is returned to the DRC, he will
likely be tortured by the Congolese armed forces. Because
substantial evidence supports the BIA’s decision, we deny
Lukunku-Tshibangu’s petition.
I.
Lukunku-Tshibangu entered the United States at Washington
Dulles International Airport on November 6, 2010. On December
1, 2010, the Department of Homeland Security issued a Notice to
Appear charging Lukunku-Tshibangu with removability for entering
the country without valid entry documents. See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). After an immigration judge (IJ) found
him removable, Lukunku-Tshibangu filed a petition for asylum,
withholding of removal, and CAT protection. At his merits
hearing on June 29, 2011, Lukunku-Tshibangu, appearing pro se,
testified to the following.
Before coming to the United States, Lukunku-Tshibangu was a
member of the Congolese armed forces, known as the FARDC. He
joined the FARDC as a “volunteer” in 2000 after his parents died
2
in the mid-1990s during the DRC’s civil war. He was given the
title “major,” but had no supervisory authority, received no
specific training, and was not issued any military
identification. See J.A. 467. Over the next ten years,
Lukunku-Tshibangu performed traffic control at the Congolese
border, inspecting crossing vehicles for weapons. He carried a
pistol, occasionally wore a uniform, and received a salary.
However, Lukunku-Tshibangu explained that he was “in and out” of
the army during this time. J.A. 468; id. at 467 (“Army there is
not the way it is here, so sometimes I was with them, sometimes
not.”). In particular, he left the FARDC in 2007 for
approximately three years to live abroad playing soccer. When
he returned to the DRC in 2009, Lukunku-Tshibangu resumed his
traffic control duties.
In 2010, Lukunku-Tshibangu was selected to travel to the
United States with a delegation of nine other DRC army officials
to attend an anti-terrorism training conference. The DRC and
United States governments arranged for his ticket and visa.
Lukunku-Tshibangu did not know why he was chosen to be part of
the delegation, but suggested that it might have been because he
worked at the Congolese border and got along well with others.
When he arrived in the United States, Lukunku-Tshibangu informed
immigration officials that he did not wish to return to the DRC.
He was then detained pending proceedings before the IJ. During
3
his detention, Lukunku-Tshibangu met with Alain Kelenga, a
representative from the DRC embassy, and informed Kelenga that
he intended to seek asylum in the United States.
Lukunku-Tshibangu testified that he feared returning to the
DRC for two reasons. First, he feared that his FARDC superiors
would punish him for failing to attend the anti-terrorism
training, which they would consider disobedience and possibly
opposition to the government. Second, he feared that fellow
FARDC soldiers would harm him out of jealousy that he was
selected to attend the training and anger that he did not do so.
When asked whether the FARDC would perceive his failure to
attend the training as dissidence, Lukunku-Tshibangu repeatedly
stated that he did not know. See, e.g., J.A. 486 (“I have no
idea because I cannot think [in] their place.”). Similarly,
when asked what he believed would happen to him if he returned
to the DRC, Lukunku-Tshibangu stated that he “ha[d] no idea what
would happen” but that he would “just enter the same suffering.”
J.A. 471. He explained that by “suffering,” he meant “the
suffering that [he] underwent during the war” as well as “when
you are working . . . hard, [and] you’re not paid well. That’s
a suffering too.” 1 J.A. 473, 484. Lukunku-Tshibangu confirmed
1
The DRC’s civil war ended in 2003, approximately seven
years before Lukunku-Tshibangu arrived in the United States.
See J.A. 575-76.
4
that he had never been arrested or imprisoned by the Congolese
government or subjected to any harm other than the “suffering”
he described. He further confirmed that he knew of no other
officers who had been punished after failing to complete a
mission because they were perceived as opposing the government.
The IJ denied Lukunku-Tshibangu’s applications for asylum
and withholding of removal but granted him protection under the
CAT, finding that his credible testimony, along with the State
Department’s 2011 Human Rights Report on the DRC (the “Human
Rights Report”), established that Lukunku-Tshibangu would likely
be tortured if returned to the DRC. See J.A. 368. The BIA
upheld the IJ’s denial of asylum and withholding of removal but,
upon de novo review, reversed the IJ’s grant of CAT protection.
Lukunku-Tshibangu petitioned this Court for review of the
BIA’s decision. Pursuant to the parties’ motions, we remanded
the case for reconsideration in light of our intervening
decision in Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012),
which held that an IJ’s determination regarding a petitioner’s
likely future mistreatment is a factual determination that the
BIA must review for clear error rather than de novo. See
Lukunku-Tshibangu v. Holder, No. 12-1002 (4th Cir. May 1, 2012).
The BIA then remanded the case to the IJ to make specific
findings as to the treatment Lukunku-Tshibangu would likely face
5
if removed to the DRC and to further consider his eligibility
for asylum and withholding of removal.
On remand, the IJ again determined that Lukunku-Tshibangu
was ineligible for asylum or withholding of removal but that he
qualified for protection under the CAT. The IJ found that if
Lukunku-Tshibangu were returned to the DRC, the FARDC would
likely be able to locate him because of his “substantial past
connection with the FARDC, his failure to follow their orders,
and the army’s extensive presence in the [DRC].” J.A. 83. The
IJ further found that the FARDC likely knew of Lukunku-
Tshibangu’s absence from the training, viewed him as a
dissident, and intended to apprehend him upon his return to the
DRC. The IJ noted that, according to the Human Rights Report,
the FARDC engages in arbitrary violence and killing of civilians
and specifically targets perceived opponents. Thus, the IJ
concluded, the FARDC would likely torture or kill Lukunku-
Tshibangu or imprison him, which would itself constitute torture
because of the deplorable conditions in Congolese prisons.
Finally, the IJ found that Lukunku-Tshibangu’s fellow soldiers
were likely “enraged” by his failure to take advantage of the
privilege of attending the anti-terrorism training and would
likely torture him for his disloyalty, as FARDC soldiers
“operate with impunity, torturing and killing people
6
arbitrarily, especially those who are suspected of dissent.”
J.A. 84.
On appeal, the BIA found that the IJ clearly erred in
determining that Lukunku-Tshibangu would likely be tortured if
returned to the DRC, and denied Lukunku-Tshibangu’s application
for CAT protection. Lukunku-Tshibangu seeks review of the BIA’s
decision. 2
II.
To qualify for protection under the CAT, an applicant bears
the burden of proving that “it is more likely than not that he
or she would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 1208.16(c)(2). Torture is “an extreme
form of cruel and inhuman treatment” that is “intentionally
inflicted on a person” by or with the consent of a public
official. Id. § 1208.18(a)(1)-(2).
When an application for CAT protection rests on a
“hypothetical chain of events,” the applicant must show that
each link in the chain is more likely than not to occur, as
“[i]t is the likelihood of all necessary events coming together
that must more likely than not lead to torture, and a chain of
2Lukunku-Tshibangu does not appeal the denial of his
applications for asylum and withholding of removal.
7
events cannot be more likely than its least likely link.” In re
J.F.F., 23 I. & N. Dec. 912, 918 & n.4 (A.G. 2006). In
assessing whether an applicant has met this burden, “all
evidence relevant to the possibility of future torture shall be
considered,” including evidence of past torture, evidence of
“gross, flagrant or mass violations of human rights” and other
country conditions, and whether the applicant could relocate to
a part of the country where he or she is not likely to be
tortured. 8 C.F.R. § 1208.16(c)(3).
We review the BIA’s decision to deny CAT relief for
substantial evidence. Suarez-Valenzuela v. Holder, 714 F.3d
241, 245 (4th Cir. 2013). “Under this standard, ‘administrative
findings of fact are conclusive unless any reasonable
adjudicator would be compelled to conclude to the contrary.’”
Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). “We will reverse the
BIA’s decision only if ‘the evidence . . . presented was so
compelling that no reasonable factfinder could fail to find’”
the elements required for CAT protection. Id. (quoting INS v.
Elias–Zacarias, 502 U.S. 478, 483–84 (1992)).
III.
A.
Lukunku-Tshibangu contends that if he is removed to the
DRC, his FARDC superiors will torture him as punishment for his
8
failure to attend the anti-terrorism training. This
hypothetical chain of events requires, among other things, that
his FARDC superiors will (1) become aware of his return to the
DRC, (2) view his absence from the training as disobedience or
opposition, and (3) torture him. A reasonable fact-finder could
find that Lukunku-Tshibangu has not shown that these events are
more likely than not to occur.
As the BIA observed, the evidence does not establish that
the FARDC would recognize and identify Lukunku-Tshibangu upon
his return to the DRC. Lukunku-Tshibangu did not have a
leadership or even supervisory position within the FARDC. He
also had no military identification, only occasionally wore a
uniform, and left the FARDC for nearly three years while playing
soccer abroad. Furthermore, there is no evidence that the
people with whom Lukunku-Tshibangu previously worked, and who
might be able to recognize him, continue to work for the FARDC,
or that their presence in the DRC is so ubiquitous that they
would likely intercept Lukunku-Tshibangu regardless of where he
entered the country. Finally, Lukunku-Tshibangu has been in the
United States for over five years and there is no evidence that
FARDC members have attempted to contact him, undermining the
IJ’s finding that the FARDC is anticipating Lukunku-Tshibangu’s
return and intending to apprehend him.
9
The evidence also does not establish that the FARDC would
view Lukunku-Tshibangu’s absence from the anti-terrorism
training as disobedience or dissidence. When asked why he could
not simply inform his government that he was detained by United
States immigration officials and therefore prevented from
attending the training, Lukunku-Tshibangu did not offer an
explanation but instead stated that “even if I told them I will
just enter the same suffering,” referring to his previous war-
time hardships and low working wages. 3 J.A. 471. Furthermore,
Lukunku-Tshibangu’s testimony indicates that attendance in the
FARDC is less formal than army participation in other countries.
He explained that he was “in and out [of] the army,” J.A. 468,
that the “[a]rmy there is not the way it is here, so sometimes I
was with them, sometimes not,” J.A. 467, and that he had
previously left the FARDC for nearly three years without
repercussion. Contrary to the IJ’s findings, the evidence does
not show that the FARDC would view Lukunku-Tshibangu’s absence
from the training as “blatant[] disobe[dience].” J.A. 84.
There is even less support for the proposition that the
FARDC would view Lukunku-Tshibangu as a dissident. The IJ asked
numerous times whether his absence from the training would be
3
Notably, Lukunku-Tshibangu did not suggest that Alain
Kelenga would have conveyed to the FARDC that Lukunku-Tshibangu
was seeking asylum in the United States.
10
perceived as opposition to the government, to which Lukunku-
Tshibangu replied “I don’t know;” “[t]hey can think any way they
want to;” and “I have no idea because I cannot think [in] their
place.” J.A. 485-86. Similarly, when asked whether any other
officers had been punished as dissidents after failing to
complete a mission abroad, Lukunku-Tshibangu replied, “I don’t
know. I really don’t know about others.” J.A. 486.
Finally, the evidence does not demonstrate that Lukunku-
Tshibangu faces harm that amounts to torture upon his return to
the DRC. When asked what he believed would happen to him if he
returned, Lukunku-Tshibangu replied, “I have no idea what would
happen, but anyway [I] wanted to . . . leave the country after
my parents died. All I did there was [] survive.” J.A. 471.
At no point did he articulate fear of “cruel and inhuman
treatment;” instead, he repeatedly stated that he wanted to
escape the “suffering” in the DRC such as poor wages. The IJ’s
primary basis for finding a likelihood of torture was the Human
Rights Report, which described state security forces as
arbitrarily killing and detaining civilians and specifically
targeting those suspected of disloyalty. However, generalized
violence toward citizens does not establish an individual’s
eligibility for CAT protection. See, e.g., Lizama v. Holder,
629 F.3d 440, 449 (4th Cir. 2011) (upholding denial of CAT
protection where applicant “failed to establish he would be
11
targeted by gangs more than any other citizens”); Singh v.
Holder, 699 F.3d 321, 334-35 & n.16 (4th Cir. 2012) (upholding
denial of CAT protection where country reports identified
widespread abuse but did not show that petitioner himself would
more likely than not be tortured). And, as discussed above, the
evidence does not establish that Lukunku-Tshibangu would be
viewed as a dissident. 4
On appeal, Lukunku-Tshibangu does not point to record
evidence that compels finding that he qualifies for CAT relief.
Instead, he asks the Court to re-weigh the evidence and draw
inferences in his favor. He argues, for example, that “it [is]
reasonable to find that his former supervisors and fellow
soldiers would recall who he is” because he resumed his military
duties after playing soccer and because “[n]ot having an I.D. or
wearing a uniform does not take away from Mr. Lukunku-
Tshibangu’s actual activities with the army.” Pet’r’s Br. 14-
15. Similarly, he asks the Court to infer that the FARDC likely
views him as a dissident because “[i]f [he] is viewed as one who
disobeyed, it leads one to conclude that he went against the
orders . . . because he disagreed with them.” Id. at 17.
However, “our task is not to reweigh the evidence and determine
4Because Lukunku-Tshibangu has not shown that he would be
found and punished upon his return to the DRC, we need not
address whether detention in a DRC prison constitutes torture.
12
which of the competing views is more compelling. It is instead
to ensure that substantial evidence supports the BIA’s
judgment.” Gonahasa v. I.N.S., 181 F.3d 538, 542 (4th Cir.
1999). For the reasons discussed above, we find that
substantial evidence supports the BIA’s judgment here.
B.
Lukunku-Tshibangu also contends that fellow FARDC soldiers
will torture him out of jealousy that he was chosen to attend
the training in the United States and anger that he failed to do
so. The evidence does not compel such a finding. Lukunku-
Tshibangu’s evidence on this point amounts to his assertion that
he would be harmed because “it could be always jealously because
when you get here, you know, it becomes also [about] jealousy.”
J.A. 474. However, Lukunku-Tshibangu does not specifically
identify any soldiers who would want to harm him or suggest that
he or other delegates were threatened by jealous soldiers when
they were first selected to come to the United States. Instead,
Lukunku-Tshibangu simply speculates that unidentified soldiers
with whom he worked five years ago continue to harbor
significant ill-will toward him and will be able to find and
torture him upon his return. The evidence does not support such
suppositions.
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IV.
The record does not compel us to find that Lukunku-
Tshibangu will more likely than not be tortured if removed to
the DRC. Accordingly, we conclude that substantial evidence
supports the BIA’s denial of CAT protection and deny Lukunku-
Tshibangu’s petition for review.
PETITION DENIED
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