Nzambi v. Gonzales ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1225
BENASE LUFUA LUA NZAMBI,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A96-097-211)
Argued: May 24, 2006 Decided: July 14, 2006
Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
ARGUED: Jacqueline Emanga Ngole, Rockville, Maryland, for
Petitioner. Dennis Carl Barghaan, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Respondent. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Respondent.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:
Benase Lufua Lua Nzambi petitions for review of a decision of
the Board of Immigration Appeals (“BIA”) denying her application
for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). We deny the petition for review.
I.
Nzambi, a citizen of the Democratic Republic of the Congo
(“DRC”), entered the United States on October 22, 2001, as a
nonimmigrant visitor with permission to remain until April 21,
2002. She overstayed her visa, however, and thus became subject to
removal pursuant to section 237(a)(1)(B) of the Immigration and
Nationality Act (“INA”). See 8 U.S.C.A. § 1227(a)(1)(B) (West
2005). The Department of Homeland Security (“DHS”) charged Nzambi
with remaining in the United States longer than authorized, in
violation of INA § 237(a)(1)(B), and placed her in removal
proceedings. Nzambi conceded removability but sought asylum, see
8 U.S.C.A. § 1158(a)(1) (West 2005), withholding of removal, see 8
U.S.C.A. § 1231(b)(3) (West 2005), and relief under the Convention
Against Torture (“CAT”), see 8 C.F.R. § 208.16(c) (2006).
In her application for asylum and withholding of removal,
Nzambi asserted that the Congolese government had persecuted her
because of her political opinion and her religion. Nzambi asserted
that government agents arrested her on August 8, 2001, as a result
2
of her attendance at a meeting of the Union for Democracy and
Social Progress (“UDSP”), a political party opposed to the regime
of Joseph Kabila. Nzambi’s alleged detention lasted for one week,
after which time she was released on the condition that she refrain
from participating in further UDSP functions.
Nzambi claimed she was arrested for a second time on September
13, 2001, approximately five weeks before she arrived in the United
States. According to Nzambi’s supporting affidavit, the arrest
occurred during a meeting at her church, the New Jerusalem, in
Kinshasa. Nzambi claims the government believed that she and
various other church members were using the New Jerusalem as a
front for UDSP activities. Nzambi was arrested along with her
pastor and a deacon of the church for “‘threatening the security of
the state’ . . . by distributing flyers that request the members of
the church to participate in a[n] uprising of the population.”
J.A. 46. Nzambi claimed to have suffered “cruel and degrading
treatment” during her six days of detention, including “tortures,
threats, [and] life threats.” J.A. 46. She was released “on
parole” with her fellow church members and was required to report
weekly to the police. Nzambi also claims she was forbidden to
participate in further political or religious meetings.
On October 21, 2001, several weeks after her release from
detention, Nzambi departed for the United States with a non-
3
immigrant visa she obtained from the American Embassy in the DRC.1
In her supporting affidavit, Nzambi stated that she applied for a
United States visa “[b]ecause of the threats I had received from
the ANR agents before my arrest.” J.A. 47. Subsequently, at the
hearing before the immigration judge, Nzambi confirmed that she
obtained her visa and passport prior to either of her arrests. She
did not elaborate, however, on the nature or details of the alleged
pre-arrest threats.
Nzambi also claimed persecution based upon her membership in
a particular social group. Nzambi’s supporting affidavit explained
that her father, Dr. Lufwa, had been an active member of the UDSP
in the early 1990s. In September 1992, when Nzambi was eighteen
years old, Dr. Lufwa was allegedly killed by forces loyal to the
Mobutu regime, which was no longer in control of the government at
the time of the incidents identified by Nzambi in her application
for relief.2
1
According to Nzambi, she needed permission from government
security agents before she could leave the country. She claims she
was able to depart only because her uncle bribed airport officials.
2
The Mobutu regime held power in the DRC -- known then as
Zaire -- from 1965 to 1997. In 1997, Laurent-Desire Kabila wrested
control of the government from Mobutu, and the UDSP opposed
Kabila’s government as well. Kabila was assassinated in January
2001, but his son, Joseph Kabila, retained power and, according to
the State Department, continued the previous regime’s practice of
using “security forces” to arbitrarily detain political opponents,
including members of the UDSP. J.A. 17; see also Mulanga v.
Ashcroft, 349 F.3d 123, 127-29 (3rd Cir. 2003).
4
At the hearing before the immigration judge, Nzambi supplied
the following additional information. She testified that her
problems with the government stemmed from her status as a church
member and UDSP supporter. As church secretary, Nzambi created
letters and tracts for the church in which she suggested that the
government was not properly caring for DRC citizens. In support of
her claim, Nzambi submitted a church membership card.
Nzambi also elaborated upon her detention following her arrest
on September 13, 2001. She testified that she was beaten every day
and that, on her final day of detention, she was raped. Upon her
release, she received treatment for her back at a private residence
in order to avoid authorities. Nzambi also indicated that her
pastor remained in the DRC, where he was harassed and eventually
killed. At the hearing, Nzambi introduced a letter ostensibly from
her pastor verifying that she was a church member, claiming that
the church faced serious threats, and suggesting that Nzambi’s life
would be in danger if she returned to the DRC.
Nzambi submitted a generic UDSP membership card and a
certificate from a UDSP seminar. She also supplied a UDSP
membership card bearing her name and photograph and indicating she
contributed in 1999 and 2000.3 Additionally, Nzambi offered a
3
Although Nzambi testified that she became an official UDSP
member in 2000, she explained that she had taken part in many UDSP
activities and had supported the UDSP before that time. Hence, the
card reflected her contribution in 1999.
5
letter from the Secretary General of the UDSP confirming her party
membership and indicating she had been arrested and had suffered
non-specific abuses at the hands of the government. Finally,
Nzambi submitted a letter from the President of the UDSP branch
located in the United States, stating that Nzambi was an active
member.
Nzambi further introduced a written statement from her uncle
indicating that Nzambi was involved with the UDSP and that she
traveled to the United States for her protection. The statement
indicated that Nzambi was arrested, but it failed to supply
specific details. Moreover, this statement did not mention the
assistance Nzambi’s uncle purportedly gave her to obtain a visa and
to leave the DRC. Additionally, Nzambi submitted documents
purporting to be a summons for her arrest, dated September 13,
2001, and an order authorizing her arrest, dated September 20,
2001. The order of authorization purports to have been issued
after her release from detention.
The immigration judge denied relief, concluding that Nzambi’s
testimony was not credible and that she did not provide sufficient
corroborative evidence of her claims. The immigration judge
explained that, although Nzambi claimed that she applied for an
American visa “[b]ecause of the threats I had received from the ANR
agents before my arrest,” J.A. 47, the actual “impetus that caused
[Nzambi] to leave her country were [the] two alleged arrests and
6
detention[s],” J.A. 54. First, the immigration judge noted that
there was no testimony or other corroborative evidence explaining
or verifying the threats that allegedly drove Nzambi to obtain the
visa. Second, it appears from the record that Nzambi received her
visa prior to her arrests but did not depart for the United States
until after the arrests. The immigration judge rejected as
implausible Nzambi’s explanation that an arrest warrant was issued
for her on the day of her release from prison and that she was able
to leave only after payment of a bribe. The judge noted that there
was no evidence suggesting Nzambi was in hiding to avoid the
execution of the warrant or why the warrant was not executed in the
six weeks between Nzambi’s release from prison and departure for
the United States. Also, the immigration judge noted that Nzambi
claimed that one of the conditions of her release was to report on
a regular basis to the authorities – had an arrest warrant been
outstanding, it seemed unlikely that Nzambi would avoid arrest when
reporting to authorities regularly. The statement from Nzambi’s
uncle was likewise not helpful to the immigration judge in that it
failed to corroborate the bribe or supply specific details about
her arrests or the pre-arrest threats she received. Finally, the
judge viewed various documents submitted by Nzambi “with
suspicion.” J.A. 56. In particular, the immigration judge found
that the summons and arrest warrant did not appear to be genuine.
7
Based on these findings, the immigration judge concluded that
Nzambi failed to satisfy the burden of proof required for asylum,
withholding of removal or protection under the CAT.
The BIA adopted and affirmed the denial of relief by the
immigration judge, finding that Nzambi failed to meet her burdens
of proof for all three forms of relief. The BIA found that the
decision of the immigration judge “properly addresses the material
inconsistencies in [Nzambi’s] testimony, the lack of reliable
corroborating evidence, and [Nzambi’s] failure to adequately
explain implausibilities in the record.” J.A. 68.
Nzambi petitions this court for review of the BIA’s denial of
relief, raising two primary challenges to the decision below.
First, Nzambi contends that the adverse credibility determination
by the immigration judge, which the BIA affirmed, was not supported
by substantial evidence. Second, Nzambi argues that the
immigration judge failed to conduct an independent and meaningful
analysis of her claim for relief under the CAT. We deny the
petition for review.
II.
Under the INA, the Attorney General and the Secretary of
Homeland Security are authorized to confer asylum on a refugee.
See 8 U.S.C.A. § 1158(b) (West 2005). To qualify as a refugee
pursuant to the INA, an alien must be unwilling or unable to return
8
to his native country “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” 8
U.S.C.A. § 1101(a)(42)(A) (West 2005). The “well-founded fear of
persecution” standard includes both subjective and objective
components. The subjective component requires that the applicant
“present[] candid, credible, and sincere testimony demonstrating a
genuine fear of persecution.” Chen v. United States I.N.S., 195
F.3d 198, 201 (4th Cir. 1999) (internal quotation marks omitted).
The objective component requires “specific, concrete facts[] that
a reasonable person in like circumstances would fear persecution.”
Id. at 202. The applicant for asylum bears the burden of proving
refugee status. See 8 C.F.R. § 1208.13(a). Furthermore, even if
the applicant establishes refugee status, the decision to confer
asylum is still within the discretion of the attorney general. See
INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999). With respect to
withholding of removal, an applicant’s burden for establishing
eligibility is even more stringent than for asylum. To qualify for
withholding of removal, the applicant must establish a “clear
probability of persecution.” INS v. Stevic, 467 U.S. 407, 430
(1984) (internal quotation marks omitted). However, when an alien
establishes eligibility for withholding of removal, the grant of
relief is mandatory. See Aguirre-Aguirre, 526 U.S. at 420.
9
The scope of review of a final order of removal denying asylum
is narrow. We may not disturb the BIA’s decision on asylum
eligibility unless it is “manifestly contrary to law and an abuse
of discretion.” 8 U.S.C.A. § 1252(b)(4)(D) (West 2005); see
Saldarriaga v. Gonzales, 402 F.3d 461, 465 (4th Cir. 2005), cert.
denied, 126 S. Ct. 1330 (2006). When the denial of asylum is based
on the conclusion that the applicant failed to meet her evidentiary
burden, then our review is for substantial evidence and we must
affirm the BIA’s decision unless the evidence is “so compelling
that no reasonable factfinder could fail to find” eligibility for
asylum. INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992). In
conducting this review, we must accord great deference to the
underlying factual findings of the BIA, which “are conclusive
unless any reasonable adjudicator would be compelled to conclude to
the contrary.” 8 U.S.C.A. § 1252(b)(4)(B). We likewise defer to
credibility findings that are supported by substantial evidence.
See Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 354 (4th Cir.
2006). Finally, a court may not “reverse a determination made by
a trier of fact with respect to the availability of corroborating
evidence . . . unless the court finds . . . that a reasonable trier
of fact is compelled to conclude that such corroborating evidence
is unavailable.” 8 U.S.C.A. § 1252(b)(4).
Nzambi argues that substantial evidence does not support the
immigration judge’s refusal to credit certain assertions Nzambi
10
made during the course of her asylum proceedings. For example,
Nzambi argues that it was error for the immigration judge to
suggest that Nzambi’s testimony about the purported reason she fled
her country was implausible and filled with discrepancies. Nzambi
notes that her testimony in no way contradicted her application for
asylum in which she claimed to have decided to flee based on
threats she received prior to her arrests and detention. Yet, the
immigration judge concluded that “[i]t appears from the record that
the impetus that caused [Nzambi] to leave her country were [the
arrests and detention].” J.A. 54. This reasoning, claims Nzambi,
was nothing more than the immigration judge’s personal speculation
about her motives which was unsupported by any testimony or other
evidence in the record.
Unfortunately for Nzambi, the immigration judge specifically
addressed the alleged pre-arrest threats as a basis for her leaving
the DRC, and he found that there was essentially no evidence
explaining these threats. See Chen, 195 F.3d at 202 (applicant
must offer “specific, concrete facts” in support of her claim)
(emphasis added). In light of the absence of evidence, we of
course cannot conclude that a reasonable factfinder would be
compelled to make a finding contrary to that of the immigration
judge.
Nzambi also contends that, contrary to the findings of the
immigration judge, there was nothing implausible about the date the
11
arrest warrant was issued or the failure of the authorities to
arrest Nzambi prior to her departure to the United States. She
argues that the immigration judge’s conclusion was rooted in
unsupported assumptions about the Congolese justice system. See
Camara v. Ashcroft, 378 F.3d 361, 369 (4th Cir. 2004) (explaining
that unsupported assumptions about foreign judicial procedure is
inadequate to justify an adverse credibility finding).
Nzambi’s argument is misplaced. The immigration judge was not
making assumptions about the justice system in the DRC; rather, he
was simply attempting to make sense of Nzambi’s claim that an
arrest warrant was issued for her on the same day that she was
released and told to report regularly. This testimony, coupled
with Nzambi’s testimony that authorities never attempted to arrest
her despite the weekly appearances, is sufficient to support the
immigration judge’s finding of implausibility.
Finally, Nzambi disagrees with the factual findings of the
immigration judge to the extent he found the corroborating evidence
to be insufficient. In particular, Nzambi argues that the judge
improperly discounted the written statement of her uncle because
there was nothing in it that was inconsistent with her claims.
However, the immigration judge was not bothered by the
discrepancies, but by the lack of corroborative details from a
relative who was heavily involved in Nzambi’s flight from the DRC.
Indeed, Nzambi indicated that her uncle knew about her arrests and
12
detention, helped her obtain her visa, and bribed airport officials
on her behalf. Nevertheless, the statement from her uncle only
addressed her relationship with the UDSP; it was silent as to the
facts of Nzambi’s arrests, detention, and flight from the DRC.
We also conclude that a reasonable trier of fact would not be
compelled to disagree with the immigration judge’s assessment that
the arrest warrant and related documents were not genuine and
authentic, based on a finding that the letterhead was a xeroxed
reproduction but the body of each document was in an “original
format.” J.A. 56.
In sum, we affirm the decision to deny relief, having
identified no evidence “so compelling that no reasonable factfinder
could fail to find” the required elements. Elias-Zacarias, 502
U.S. at 484.
III.
Nzambi also contends that the immigration judge failed to
conduct an independent, separate evaluation of the evidence and
testimony under the standards of the CAT, as required by Camara.
See 378 F.3d at 371. Relief from removal under the CAT requires
the applicant to show that it is more likely than not that he or
she would be tortured if removed to the proposed country of
removal. See 8 C.F.R. § 1208.16(c)(2). In this context, “torture”
is defined as follows:
13
[A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining . . . information
or a confession, punishing him . . . for an act he . . .
committed or is suspected of having committed, or
intimidating or coercing him . . . , or for any reason
based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of . . .
a public official or other person acting in an official
capacity.
8 C.F.R. § 1208.18(a)(1). Unlike a claim for asylum, the applicant
need not establish the reason for the torture under the CAT or that
he has a well-founded fear of such torture. See Camara, 378 F.3d
at 371. Significantly, “[b]ecause there is no subjective component
for granting relief under the CAT, [an] adverse credibility
determination [used to reject an asylum claim] would not
necessarily defeat [a] CAT claim.” Id. Even if the immigration
judge determines that the applicant’s testimony is not credible, a
CAT claim may still succeed where the applicant has submitted
independent evidence from which a factfinder could conclude that
torture is more likely than not upon a return to the proposed
country of removal. See id. at 371-72.
We review the denial of a claim for relief under the CAT for
substantial evidence. See Rashiah v. Ashcroft, 388 F.3d 1126, 1131
(7th Cir. 2004). Relying on Camara, Nzambi contends that the
immigration judge did not consider all of the relevant evidence and
simply resolved her CAT claim based on the adverse credibility
determination used to deny her asylum claim. We cannot agree.
Although the immigration judge did not separately discuss all of
14
the evidence and testimony as relating to the asylum and CAT
claims, it is readily apparent that the judge applied the proper
standards for a CAT claim and did not reject the claim based solely
upon an adverse credibility finding with respect to Nzambi’s
testimony and supporting affidavit.
Indeed, the decision below touches on virtually all of the
documentary evidence supplied by Nzambi in support of all of her
claims. Such evidence included UDSP membership documents, the
arrest warrant and related documents, and the State Department
country report for the DRC in 2002 which indicated that the
government still targeted UDSP members for harsh treatment. Except
for the State Department’s Report, the immigration judge gave
specific and cogent reasons for rejecting each evidentiary item.
And the country report, in and of itself, does not satisfy the
proof required for relief under the CAT. See Zubeda v. Ashcroft,
333 F.3d 463, 478 (3rd Cir. 2003). Although the report is evidence
that UDSP party members were still at risk in 2002 for treatment
that could amount to torture, something more specific is needed
than party membership to show Nzambi is more likely than not to be
tortured were she to return to the DRC.
Accordingly, we conclude that sufficient independent
consideration was given to Nzambi’s CAT claim and that the
immigration judge did not deny the claim solely based on
credibility findings. We conclude that substantial evidence
15
supports the conclusion that Nzambi failed to satisfy the more
likely than not standard required for relief under the CAT.
IV.
For the reasons set forth above, we deny the petition for
review.
PETITION DENIED
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