Pappy Katembo v. William Barr, U. S. Atty Gen ( 2020 )

Case: 18-60770 Document: 00515597872 Page: 1 Date Filed: 10/12/2020
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
October 12, 2020
No. 18-60770 Lyle W. Cayce
consolidated with Clerk
No. 19-60395
Summary Calendar
Pappy Katembo Katembo,
Petitioner,
versus
William P. Barr, U.S. Attorney General,
Respondent.
Petitions for Review of Orders of the
Board of Immigration Appeals
BIA No. A212 978 911
Before Davis, Stewart, and Dennis, Circuit Judges.
Per Curiam:*
Pappy Katembo, a native and citizen of the Democratic Republic of
Congo (DRC), petitions this court for review of the denial of his application
*
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not be published and is not precedent except under the limited circumstances set forth in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.
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for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). He argues (1) the immigration judge (IJ) erred in holding he
did not show that he suffered persecution on account of his actual or imputed
political opinion; (2) the IJ and Board of Immigration Appeals (BIA) erred in
failing to analyze whether he was persecuted on account of his membership
in a particular social group, people who worked for National Independent
Electoral Commission (CENI) during the 2011 election cycle; (3) the IJ
applied the wrong legal standard and mischaracterized evidence when
considering whether the government was unwilling or unable to control the
persons who persecuted him; and (4) the BIA abused its discretion in denying
his motion to reopen. We must deny the petition, for the following reasons.
First, regardless of whether or not Katembo could show that the harm
he suffered rose to the level of persecution, see Morales v. Sessions, 860 F.3d
812, 816 (5th Cir. 2017), he has not shown that the evidence compels the
finding that he suffered persecution on account of his actual or imputed
political opinion. See Martinez Manzanares v. Barr, 925 F.3d 222, 227-28 (5th
Cir. 2019). Katembo testified that he thought the perpetrators who attacked
him were working for a politician who lost the election, but the IJ found (and
the BIA agreed) that he did not adequately show that the threats and attacks
he suffered were related or that the perpetrators were motivated by his actual
or imputed political beliefs. See Sharma v. Holder, 729 F.3d 407, 412-13 (5th
Cir. 2013). Rather, the IJ found Katembo was targeted because of his
occupation as an election worker.
Next, although Katembo testified at his hearing that he was targeted
because of his work with CENI, the IJ determined based on his asylum
application that he was seeking relief because of his political opinion. The
BIA ruled that Katembo attempted to articulate a particular social group for
the first time on appeal. Because Katembo did not expressly seek relief based
on his membership in a particular social group before the IJ, the BIA did not
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err in holding that the issue was not properly before it. See Eduard v. Ashcroft,
379 F.3d 182, 195 n.14 (5th Cir. 2004). Therefore, Katembo did not exhaust
his administrative remedies as to this issue. See Omari v. Holder, 562 F.3d
314, 318-19 (5th Cir. 2009). This court does not have jurisdiction to consider
an issue that is unexhausted. See id. at 320-21.
Third, Katembo testified that he feared persecution by a losing
politician and his followers, not by a government official. He had the burden
to show that the government sanctioned his persecution or is unable or
unwilling to control his persecutors. Gonzalez-Veliz v. Barr, 938 F.3d 219, 229
(5th Cir. 2019); see Tamara-Gomez v. Gonzalez, 447 F.3d 343, 350-51 (5th Cir.
2006). Katembo testified that on one occasion the police intervened, causing
the perpetrators to flee, but that the police declined to engage further when
they found out the victims of the attack were CENI workers. Katembo also
testified that he did not report any other incidents to the police. The IJ found
Katembo did not carry his burden, and he has not shown that the evidence
compels the finding that he was persecuted or would be tortured with the
acquiescence of government officials if removed to his home country. See
Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015).
Finally, Katembo has not shown that the BIA abused its discretion in
denying his motion to reopen. See Gomez-Palacios v. Holder, 560 F.3d 354,
358 (5th Cir. 2009). The BIA was not required to accept all of his assertions
as true. See INS v. Abudu, 485 U.S. 94, 109-10 (1988). It did not err in finding
that the 2017 country report was largely cumulative evidence as the 2016 and
2017 reports both stated rebel and militia groups (RMGs) killed and abducted
numerous persons for various reasons. Although the 2017 report stated
several CENI officials had been killed by an RMG, it did not state that
politicians who lost the election targeted CENI officials based on their
political opinion. The BIA did not abuse its discretion in finding the letter
written by Katembo’s friend was entitled to little evidentiary weight because
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it was not based on firsthand knowledge, it was written in support of
Katembo’s motion, and the writer was not available for cross-examination.
See Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 (BIA 2010),
abrogated on other grounds by Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
Further, the letter did not identify who was responsible for the alleged recent
attack and did not show that the attack was related to Katembo’s CENI work
or his political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
Therefore, the BIA did not abuse its discretion in denying Katembo’s motion
to reopen on the basis that he did not establish a prima facie case for asylum,
withholding of removal, or CAT relief. See Gomez-Palacios, 560 F.3d at 358.
PETITIONS FOR REVIEW DENIED.
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