Armando Matadi v. William Barr, U. S. Atty Gen ( 2020 )

Case: 19-60399 Document: 00515487553 Page: 1 Date Filed: 07/13/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-60399 July 13, 2020
Lyle W. Cayce
ARMANDO MATADI, Clerk
Petitioner
v.
WILLIAM P. BARR, U. S. ATTORNEY GENERAL,
Respondent
Petitions for Review of Orders of the
Board of Immigration Appeals
BIA No. A216 540 427
Before HAYNES, WILLETT, and OLDHAM, Circuit Judges.
PER CURIAM:*
Petitioner Armando Matadi asks us to review the BIA’s denial of his (1)
applications for asylum, withholding of removal, and Convention Against
Torture (CAT) protection, and (2) motion to reopen proceedings. As the BIA
committed no reversible error, we deny Matadi’s Petition for Review. 1
* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
1 Matadi filed his original petition for review, concerning the BIA’s denial of his
applications, on August 6, 2019. Nearly ten months later, on May 26, 2020, Matadi filed a
supplemental brief challenging the BIA’s denial of his motion to reopen. We refer to these
documents collectively as Matadi’s Petition for Review.
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I
Matadi, a native and citizen of Angola, applied for admission into the
United States on or around February 22, 2018, though he lacked valid
documentation, based on his fear of returning to Angola. Specifically, as a
Christian pastor, Matadi believes he was persecuted—and will be persecuted
if returned to Angola—by the government’s controlling party, the People’s
Movement for the Liberation of Angola (MPLA), for his refusal to encourage
churchgoers to join the party.
Matadi’s relationship with the MPLA, in relevant part, began in 2013
when the party invited him and other church members to attend a meeting.
During the meeting, MPLA representatives asked the attendees to vote for the
MPLA; they even offered to buy Matadi an apartment if he encouraged his
parishioners to vote for the party. Realizing that the meeting did not concern
Christianity, Matadi left, seemingly without consequence.
The next year, Matadi moved to Zango, near Angola’s capitol, where he
became involved in building a new church in the town. After the building was
completed, the government recognized the church through proper
documentation and the community legally authorized Matadi to be the
church’s leader. From 2013 through most of 2016, Matadi was not threatened
or harmed by the MPLA. Then, in November 2016, members of the military
came to Matadi’s home and demolished the structure. When Matadi asked why
his home was being destroyed, the military commander threw him to the
ground and repeatedly kicked him, resulting in a cut on Matadi’s right leg.
Matadi reported the incident to municipal administrators, who informed him
that they would send people to investigate; however, no one ever came.
Without a home, Matadi sent his wife and daughter to stay with his
uncle. On the same day that his home was destroyed, armed “bandits” entered
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his uncle’s home, called out Matadi’s name, beat his uncle, and stole a
computer and money. Because Matadi was not present, the bandits told his
uncle “that they’re going to find [him]. They will find [him] in any place that
[he] will be.” This incident was not reported to the police.
Matadi’s next alleged encounters with the MPLA occurred eleven
months later, in October 2017. On two occasions, Matadi was approached by
group of men wearing MPLA shirts. On one occasion, the men made him lay
on the ground, took his phone and money, and informed him that the MPLA is
big and will always govern, while Matadi is nothing, and that they would
“finish [him] out.” The men then fled after noticing a group of people
approaching, leaving Matadi physically unharmed. These incidents went
unreported.
Around the time as these encounters, Matadi’s landlord informed him
that he could no longer use the building as a church. When he inquired further,
the landlord told him that he was going to rent the building out as a store
instead. Matadi later learned that the store belonged to an administrator of
the MPLA.
Based on these events, Matadi left Angola on December 10, 2017, leaving
behind his wife and daughter who continue to live with Matadi’s uncle. Matadi
traveled from Angola to the United States using a passport that the Angolan
government issued to him in 2016.
As noted, when Matadi reached the United States, he applied for
admission though he did not have valid documentation to do so. Based on his
fear of returning to Angola, Matadi was granted a credible fear interview with
an asylum officer, who then referred Matadi’s case to an immigration judge
(IJ). The Department of Homeland Security also served Matadi with a Notice
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to Appear before an IJ to answer a charge of inadmissibility. See 8 U.S.C. §
1182(a)(7)(A)(i)(I).
Matadi appeared before the IJ for his merits hearing, where the court
considered his applications for asylum, withholding of removal, and CAT
protection. Shortly before the hearing, Matadi submitted a 200-page collection
of documents, which included: Matadi’s identification documents; a copy of his
original asylum application; documents concerning his status and training as
a pastor; affidavits from his wife, uncle, and friend; several country conditions
reports; and photographs of Matadi and his church (Exhibit 6).
Through an interpreter, the IJ and Government’s counsel questioned
Matadi about the basis of his applications, during which Matadi recounted the
above-enumerated experiences related to the MPLA. At the close of
questioning, the IJ orally pronounced his decision. Having “reviewed all of the
evidence in [Matadi’s] case,” the IJ determined that the encounters, while
reprehensible, “do not . . . rise[] to the level of the extreme concept known as
persecution.”
The IJ concluded that the first incident—during which the military
destroyed Matadi’s home and kicked him—did not rise to the level of
persecution and was not reasonably related to his religious beliefs or political
affiliation. It noted that the military did not make any statements to him
during the encounter to indicate that his home was being destroyed for political
reasons and observed that, in 2016, Angolan security officials exercised the
government’s eminent domain powers and destroyed hundreds of allegedly
illegal, privately built homes in Zango, displacing thousands of people
irrespective of their religion or political affiliation. The IJ acknowledged that
Matadi believed he was being targeted for his refusal to join the MPLA but
highlighted that Matadi had also refused to join the MPLA in 2013 and
“nothing happened.” “Same thing in 2014. Nothing happened. . . . Same thing
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in 2015. Nothing happened. . . .” Though he emphasized that the government’s
behavior was wrong, the IJ concluded that “for asylum purposes[,] it’s
insufficient to make the necessary connection between them demolishing
[Matadi’s] home and a protected ground.”
As for the robbery at his uncle’s house, the IJ accepted Matadi’s
testimony that the robbers were looking for him but noted that “there’s
insufficient evidence as to why they were looking for [Matadi]”or “to establish
who these people were.” From the information provided by Matadi, the IJ had
“no idea if they were regular criminals or they were government officials” but
noted that “they appear to be regular criminals. . . .” Though they may have
been looking for Matadi, they ultimately robbed his family, suggesting “they
were motivated by criminal activity and personal financial gain, not by a desire
to punish [Matadi] for [his] religion or political opinion.”.
The IJ observed that Matadi’s next encounters with—who Matadi
believed to be—the MPLA did not occur until nearly a year later when Matadi
was robbed in his church. While the IJ expressed “no doubt” that Matadi was
the victim of a crime, he found that Matadi had provided “insufficient evidence
to actually persuade [him] that [the robbers] were actual government officials
as opposed to basic criminals.” The IJ also emphasized that for the next two
months, until Matadi left the country, “the only thing that happened to him
was that . . . members of the MPLA pointed their fingers . . . and would say
things such as [he is] nothing and that the MPLA is strong and powerful.”
These experiences, the IJ concluded, “do[] not rise to the level of persecution.”
Nor did they, in the IJ’s view, demonstrate that it was more likely than not
that Matadi would be tortured by the Angolan government, or with its consent
and acquiescence, if returned.
Based on the evidence presented, or the lack thereof, the IJ denied
Matadi’s applications for asylum, withholding of removal, and CAT protection.
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Matadi appealed to the BIA, who affirmed the IJ’s factual findings and
holdings. Matadi then filed a petition for review in this court. While that
petition was pending, Matadi retained pro bono counsel and moved the BIA to
reopen the denial of his asylum claim based on newly obtained evidence—
specifically, an expert affidavit concerning the country conditions in Angola.
However, the BIA denied Matadi’s motion, finding that the expert affidavit was
neither previously unavailable nor material evidence. So, Matadi filed
supplemental briefing to include the BIA’s denial of his motion to reopen in his
Petition for Review.
II
The Attorney General has discretion to grant asylum to anyone who is
“unable or unwilling” to return to his country of nationality “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. § 1158(b) (referencing § 1101(a)(42) (defining “Refugee”)). 2 The
asylum applicant bears the burden of demonstrating eligibility for such relief,
8 C.F.R. § 1208.13(a), including establishing a sufficiently strong nexus
between the harm he experienced or fears and the protected ground he claims
is or will be a central basis for the persecution, 8 U.S.C. § 1158(b)(1)(B)(i).
Unlike whether to grant asylum, a grant of withholding of removal is not
discretionary. Id. § 1231(b)(3). The Attorney General must grant this relief
where the applicant demonstrates a “clear probability”—meaning that it is
more likely than not—that his life or freedom will be threatened by persecution
2 Where an applicant proves past persecution, he is entitled to a presumption of a well-
founded fear of future persecution. See 8 C.F.R. § 1208.13(b)(1). If an applicant has not
established past persecution, he must prove a well-founded fear of future persecution to be
eligible for asylum. Id. §§ 1208.13(a), (b)(2)(iii).
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on a protected ground if returned to his country of nationality. See Faddoul v.
INS, 37 F.3d 185, 188 (5th Cir. 1994).
Applications for CAT protection differ from applications for asylum or
withholding of removal because they need not be based on membership in a
protected group. See Garcia v. Holder, 756 F.3d 885, 891 (5th Cir. 2014). To be
entitled to CAT protection, an applicant must demonstrate that it’s more likely
than not that he will be tortured if removed to the proposed country of removal.
Id.; see also 8 C.F.R § 208.16(c)(2). For CAT purposes, torture means “any act
by which severe pain or suffering . . . is intentionally inflicted on a person . . .
by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1).
Generally, we only have the authority to review an order of the BIA, not
the IJ’s decision. Mikhael v. I.N.S., 115 F.3d 299, 302 (5th Cir. 1997). However,
where, as here, “the IJ’s decision has some impact on the BIA’s decision,” we
may review both. Id.; see also Wang v. Holder, 569 F.3d 531, 536 (5th Cir.
2009). We review questions of law de novo, Gonzalez v. Holder, 771 F.3d 238,
238 (5th Cir. 2014), but we review the BIA’s findings of fact for substantial
evidence, and they may not be reversed unless we conclude that “any
reasonable adjudicator would be compelled to conclude to the contrary,”
8 U.S.C. § 1252(b)(4)(B); see also Garcia, 756 F.3d at 890. In other words, we
must uphold the BIA’s factual findings as long as they are “supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481, 483–84 (1992). Due to this
deferential standard, we “should not supplant the agency’s findings merely by
identifying alternative findings that could [also] be supported by substantial
evidence.” Arkansas v. Oklahoma, 503 U.S. 91, 113 (1992).
Our review of a denial of a motion to reopen is even more deferential,
reviewed under the abuse-of-discretion standard. See Zhao v. Gonzales, 404
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F.3d 295, 303 (5th Cir. 2005). Motions to reopen deportation proceedings are
“disfavored,” Lara v. Trominski, 216 F.3d 487, 496 (5th Cir. 2000), because
“[g]ranting . . . such motions too freely will permit endless delay of deportation
by aliens creative and fertile enough to continuously produce new and material
facts. . . .” INS v. Abudu, 485 U.S. 94, 107–08 (1988) (internal quotation
omitted). Therefore, we will allow the BIA’s denial to stand “so long as it is not
capricious, racially invidious, utterly without foundation in the evidence, or
otherwise so aberrational that it is arbitrary rather than the result of any
perceptible rational approach.” Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993)
(internal quotation omitted).
III
In his Petition for Review, Matadi argues that the IJ and BIA erred in
denying his applications for asylum, withholding of removal, and CAT
protection by: (1) failing to meaningfully consider the key evidence contained
in Exhibit 6; (2) concluding that Matadi did not establish past persecution or a
well-founded fear of future persecution; and (3) relying on Matadi’s ineligibility
for asylum to conclude that Matadi was also ineligible for withholding of
removal. Matadi also argues that the BIA erred in denying his motion to reopen
because the newly offered evidence is material and could not have been
discovered prior to the BIA’s original decision. We address each argument in
turn.
Matadi first argues that the IJ and BIA committed procedural error by
failing to meaningfully consider the evidence presented in Exhibit 6. 3 The BIA
The Government argues that Matadi failed to exhaust this claim before the BIA
3
because, in his brief before the agency, he merely argued that IJ “did not consider all of the
evidence that [he] filed,” without identifying or discussing Exhibit 6. However, because
Matadi was proceeding pro se, we will liberally construe his filing and consider this argument
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is not required to “specifically address every piece of evidence put before it,”
but “its decision must reflect meaningful consideration of the relevant
substantial evidence supporting the alien’s claims.” Abdel-Masieh v. U.S.
I.N.S., 73 F.3d 579, 585 (5th Cir. 1996). Matadi argues that the BIA failed to
satisfy this standard because it did not discuss the country conditions report
provided in Exhibit 6, which documents the MPLA’s practice of “pressuring
churches to support the government in the lead-up to planned elections in
August 2017” and “trying to coerce religious groups to align themselves with
the ruling party in exchange for authorization to operate freely.” 4 We disagree.
On multiple occasions, the IJ and BIA acknowledged that they
considered the record as a whole and took notice of the country conditions in
Angola. For instance, the IJ generally informed Matadi that he “reviewed all
of the evidence in [his] case,” and specifically concluded that “after reviewing
the entire evidentiary record to include the information contained in Exhibit 6
for identification[,] there is simply insufficient evidence of gross, flagrant or
sufficiently exhausted. See, e.g., Vazquez v. Sessions, 885 F.3d 862, 868 (5th Cir. 2018); Burke
v. Mukasey, 509 F.3d 695, 696 (5th Cir. 2007).
4 Matadi also argues that the report provides significant evidence that the robberies
against Matadi and his family were actually conducted by the MPLA because, he suggests,
the report notes “that the Angolan government often employed ‘plainclothes armed thugs’
who were ‘de facto agents of the state security service’ to attack and intimidate protestors.”
This is a gross overstatement. In fact, the report notes that “youth protestors,” who engaged
in public anti-government demonstrations, were subjected to the harassment and violence of
these armed individuals—“a so-called group of citizens concerned with stability and peace.”
The report provides no information to suggest that non-protestors, passive dissenters, or even
those who have spoken ill of the government outside of the protest setting have ever
experienced such treatment. So while this information suggests that the MPLA is not above
relying on civilian criminals to punish active protestors, it does not provide “key” evidence to
suggest that the robbers who attacked Matadi and his family were members of this group
that is described as acting in an entirely different context, against an entirely different group
of people, years before the violations against Matadi occurred. Compare the IJ’s consideration
here, with Cabrera v. Sessions, 890 F.3d 153, 163–64 (5th Cir. 2018) (finding IJ procedurally
erred where it failed to consider reports supporting petitioner’s assertions that she was at
particular risk of persecution because of her gender and altogether failed to analyze the
characteristics of her claimed particular social group).
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mass violations of human rights within Angola to tip the scale. . . .” Further,
and more to the point, the IJ directly acknowledged that “[t]he MPLA was
setting their sights on [Matadi] and other pastors because of their influence
over the congregation and their ability to have their congregation provide more
votes for the MPLA.” The IJ simply concluded that the government’s actions
do not amount to persecution or impose a risk that Matadi would be persecuted
or tortured if returned to Angola.
And the BIA agreed. It noted Matadi’s argument regarding the
government’s alleged practice of pressuring churches to support the
government but gave his contention “little weight.” The BIA did not doubt that
there is “corruption and some impunity in Angola,” but it concluded that these
harms do not rise to a level of persecution or risk of torture.
Without doubt, the IJ and BIA could have gone through each document
in each exhibit and explained how they weighed the individual pieces of
information, but this is not what we require. Abdel-Masieh, 73 F.3d at 585 (“We
do not require the BIA to specifically address every piece of evidence put before
it.”). Instead, our procedural review focuses on whether the petitioner “has
received full and fair consideration of all circumstances that give rise to his or
her claims.” Id. (internal quotation omitted). Here, the IJ’s extended and
extensive—if not exhaustive—oral pronouncement, and the BIA’s
consideration of the same, demonstrate that Matadi was afforded due process.
Matadi next argues that the IJ and BIA erred in concluding that he did
not suffer past persecution 5 and does not have a well-founded fear of future
5 Matadi also argues that the IJ and BIA erred as a matter of law because they failed
to consider the aggregate effect of all of the acts of persecution he endured. However, even
viewing Matadi’s brief to the BIA under the liberal and understanding standard we afford to
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persecution. However, because the record evidence does not compel a
conclusion contrary to that reached by the IJ and BIA, we find they did not err.
1
The IJ and BIA reasonably determined that the harms Matadi endured
do not rise to the level of persecution. In this circuit, “[t]he law regulating
persecution claims, although humane in concept, is not generous.” Adebisi v.
INS, 952 F.2d 910, 913 (5th Cir. 1992) (internal quotation omitted).
Persecution refers to “extreme conduct,” and “does not encompass all
treatment that our society regards as unfair, unjust, or even unlawful or
unconstitutional.” Majd v. Gonzalez, 446 F.3d 590, 595 (5th Cir. 2006). So even
though persecution can include harms and suffering that are not physical, such
as the “imposition of severe economic disadvantage or the deprivation of
liberty, food, housing, employment or other essentials of life,” it requires more
than mere discrimination, harassment, or threats. Eduard v. Ashcroft, 379
F.3d 182, 187–88 (5th Cir. 2004) (internal quotation omitted).
Here, Matadi has provided evidence that he was approached by the
MPLA in 2013, but he declined their invitation to join the party by walking out
of the meeting. For the next three years, Matadi was entirely unharmed. Then,
in November 2016, Matadi’s house was destroyed by government officials, a
reprehensible, but not uncommon, 6 occurrence in the country, and Matadi was
thrown to the ground and kicked (resulting in a cut on his leg). That same day,
Matadi’s uncle was beaten and burglarized by unknown assailants who asked
pro se petitioners, we find this claim of improper disaggregation unexhausted. We therefore
lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1).
6 For instance, as the IJ noted, security forces demolished hundreds of allegedly
illegal, privately built homes in August 2016, displacing thousands and resulting in several
deaths. And, by Matadi’s own account, he found “a lot of people crying” at the municipal
administrator’s officer when he went to report his own home’s destruction because their
homes, too, had been destroyed.
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for Matadi by name. Then, nearly a year later, Matadi was twice approached
by a group of men wearing MPLA shirts boasting the power and size of the
party and, during at least one of those encounters, robbed. Finally, the landlord
for Matadi’s church evicted him so that he could rent the space to a store owner;
Matadi later learned that the store owner is a member of the MPLA.
While we understand Matadi’s concerns about these events, substantial
evidence supports the IJ and BIA’s findings that these discrete, temporally
separated incidents do not amount to a showing of past persecution on the
basis of Matadi’s political opinions. See, e.g., Eduard, 379 F.3d at 187–88
(affirming finding of no persecution where petitioner was struck in the head
with a rock and was harassed, taunted, and denigrated); Abdel-Masieh, 73 F.3d
at 584 (affirming finding of no persecution where petitioner was twice arrested,
detained, and beaten—though not severely—by public officials, particularly
where petitioner was not singled out for his beliefs); see also, e.g., Hussain v.
Holder, 567 F. App’x 223, 227 (5th Cir. 2014) (unpublished) (rejecting
persecution claim based on a series of “discrete events that occurred over a
period of many years”); Mariena-Moncada v. Holder, 451 F. App’x 444, 445 (5th
Cir. 2011) (unpublished) (affirming finding of no persecution where petitioner
experienced verbal threats and one physical attack over a four-to-five-month
period).
2
The BIA reasonably determined that Matadi does not have a well-
founded fear of future persecution. To demonstrate a well-founded fear of
future persecution, a petitioner must establish that his fear is both
“subjectively genuine” and “objectively reasonable.” Chen v. Gonzalez, 470 F.3d
1131, 1135 (5th Cir. 2006) (internal quotation omitted). The IJ did not doubt
the subjective genuineness of Matadi’s fear. But, to demonstrate its objective
reasonableness, Matadi is required to show that: (1) he possesses a protected
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belief or characteristic that the persecutor seeks to overcome through
punishment; (2) the persecutor knows, or could come to know, he possesses this
belief or characteristic; (3) the persecutor is capable of punishing him; and (4)
the persecutor has the inclination to punish him. Id. at 1135–36 (internal
quotation omitted).
Here, the BIA concluded that Matadi failed to provide sufficient evidence
to show that the harms he suffered were based on his political opinions and
that “there is no evidence that anyone continues to look for him in Angola.”
Both conclusions, reasonably supported by the record, demonstrate that
Matadi has not satisfied the first or fourth prongs required to demonstrate an
objectively reasonable fear of returning to Angola. Because Matadi has failed
to demonstrate past persecution or a well-founded fear of future persecution,
we agree that he is ineligible for a grant of asylum. 7
In his next argument, Matadi argues that his claim for withholding of
removal should be remanded because of the errors in the BIA’s asylum
decision. However, because we find that the BIA did not err in affirming the
IJ’s denial of asylum, we likewise find that the BIA did not err in dismissing
his request for withholding of removal. See Mikhael, 115 F.3d at 306 (observing
that, because the standard for withholding of removal is more stringent than
the standard for a grant of asylum, courts often summarily dismiss requests
for withholding upon finding insufficient evidence for asylum purposes).
7 Matadi also argues that the IJ and BIA erred by improperly shifting the burden to
Matadi to prove that he could not relocate to another part of Angola. However, because the
BIA reasonably concluded that he did not have a well-founded fear of returning to Angola,
irrespective of the city, we need not address this argument. See 8 C.F.R. § 208.13(b)(2).
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Finally, Matadi argues that the BIA abused its discretion in denying his
motion to reopen. A motion to reopen “shall not be granted” unless the
petitioner seeks to introduce evidence that is “material and was not available
and could not have been discovered or presented at the former hearing.”
8 C.F.R. § 1003.2(c). Without addressing the materiality of the proffered
evidence, we find that Matadi’s argument fails because the evidence was
previously available or could have been discovered or presented before the BIA
issued its first order.
In support of his motion, Matadi proffered: (1) the 2018 Department of
State Human Rights Report and International Religious Freedom Report for
Angola; (2) an amended asylum application and personal declaration by
Matadi; and (3) an affidavit from Dr. Schubert, an expert in the country
conditions in Angola. Only Dr. Schubert’s affidavit is at issue on appeal. 8
Matadi contends that the BIA abused its discretion in concluding that
Dr. Schubert’s affidavit was previously available to him because Matadi did
not previously have counsel and he is in a detention facility where he does not
know anyone, he does not speak English, he does not know how to find an
expert regarding Angola, and he could not afford to hire an expert even if he
located one on his own. Though we recognize, and sympathize with, the
practical hinderances that detainees—particularly those without counsel—
face, these circumstances do not satisfy the “previously unavailable”
requirement. 9 To hold otherwise would be contrary to the Supreme Court’s
8 For the first time in his reply brief, Matadi insists that the BIA abused its discretion
by failing to consider the materiality of his personal declaration. Matadi abandoned this
argument by failing to raise it in his initial briefing. Cinel v. Connick, 15 F.3d 1338, 1345
(5th Cir. 1994).
9At bottom, Matadi was repeatedly informed of his right to obtain counsel and was
provided with a list of pro bono attorneys who would have been willing to represent him both
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admonishment that motions to reopen are “disfavored,” INS v. Doherty, 502
U.S. 314, 323 (1992), and incentivize petitioners to forever claim ignorance of
how to procure relevant evidence and delay seeking the advice of counsel—pro
bono or otherwise. The BIA’s determination that Matadi could have previously
obtained Dr. Schubert’s expert advice was not capricious, discriminatory,
lacking in foundation, or otherwise arbitrary; the BIA therefore did not abuse
its discretion in denying Matadi’s motion to reopen.
CONCLUSION
For these reasons, Matadi’s Petition for Review is DENIED.
before the IJ and on appeal to the BIA. However, Matadi declined to exercise the right
available to him.
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