Nalwamba v. Holder, Jr.

ORDER AND JUDGMENT^*

HARRIS L. HARTZ, Circuit Judge.

Edward Nkugwa Kironde Nalwamba seeks judicial review of a decision by the Board of Immigration Appeals (BIA) affirming the denial by an immigration judge (IJ) of his requests for asylum, restriction on removal, and protection under the Convention Against Torture (CAT). Mr. Nalwamba claims that the BIA failed to consider the cumulative impact of his past mistreatment; mischaracterized his experiences as harassment rather than persecution; found improved country conditions without evidentiary support; and improperly denied his torture claim. Because substantial evidence supports the BIA’s decision, we deny the petition for review.

I

Mr. Nalwamba is a native and citizen of Uganda. He entered the United States in 2002 on a visitor visa, but overstayed his visit. When the Department of Homeland Security (DHS) initiated removal proceedings, Mr. Nalwamba conceded that he was removable but applied for asylum, restriction on removal, and CAT protection. Although he failed to appear for his initial hearing and was ordered removed in absentia, the BIA rescinded the removal order and remanded the matter to an IJ for further proceedings.

At his new hearing Mr. Nalwamba testified that he was an ordained priest who had publicly condemned human rights abuses committed by the Ugandan government. On his asylum application he indicated that his criticisms precipitated several brief detentions (the longest lasting four days) and beatings dating as far back as the 1970s. He also indicated that he had been threatened at gun-point, forced to sit in a drainage ditch for a protracted period, and immersed in cold water. Before the IJ, however, Mr. Nalwamba focused on events that occurred after Ugandan President Museveni took office in 1986. Several of these events involved warnings and name-calling, but no physical abuse. First, because he gave refuge to a pregnant woman (apparently married to an antigovernment soldier) and her eight children, officers came to his home on three occasions to tell him “to find a way of getting rid of her.” Admin. R. at 161. Next, after he intervened when several revenue officers knocked a fruit vendor off his bicycle, officers began to call him the “fene pastor,” id. at 164, referring to the fruit carried by the bicyclist. Later, as a result of his public opposition to the government’s position on land ownership, he received three official visits telling him to “stop making political statements in public,” id. at 165, and he was warned not to become a “stumbling block” for government policies, id. at 165-66.

Two subsequent episodes were more ominous. During the 2001 elections, supporters of President Museveni came to his church and directed him to encourage his congregation to vote for Museveni. Instead, Mr. Nalwamba told the members of his congregation to educate themselves and vote their opinions. The Museveni supporters responded by “storm[ing] out of the church [as] they wagged their finger[s],” a gesture Mr. Nalwamba interpreted as a sign of “trouble ahead.” Id. at 168. About two weeks later, security agents took Mr. Nalwamba and a number of neighbors from their homes in the middle of the night and forced them to walk to a field where they were made to lie on the ground. They were then taken to a “government clinic.” Id. at 171. There he was interrogated about his affiliation with an opposition group and arms imports. When he denied any involvement, he was released with a warning to stop his activities.

In the final incident, Mr. Nalwamba was kidnapped on the street, blindfolded, and taken to a house where he was accused of plotting to come to the United States to join an opposition leader. He was warned that if he ever went to the “airport to try and fly out of the country[, he would] never come out alive.” Id. at 176. He was then released at a location “where soldiers used to kill people.” Id. at 177.

After this last incident, Mr. Nalwamba’s friends persuaded him to attend a religious conference in the United States, helping with the necessary funding and devising a plan for him to travel by bus to Kenya, where he would then fly to Cairo and the United States. Mr. Nalwamba executed this plan using his own passport. Once in the United States, he attended the religious conference and stayed to visit with a friend for a couple months. During that time his friends and family in Uganda told him that security and political conditions there were deteriorating and human-rights abuses were increasing, so he should remain in the United States. He also testified that he received a fax from Uganda that was picked up for him at a Denver church. He said that the threats in the fax made him fear for his life, particularly because it demonstrated that his whereabouts were known.

In addition to his own testimony, Mr. Nalwamba called as a witness Dr. Joel Barkan, an expert in Ugandan politics and society. Dr. Barkan said that people like Mr. Nalwamba would be subject to harassment under the Museveni regime, and that some opposition activists had been tortured and incarcerated. Mr. Nalwamba also submitted a 2004 Human Rights Watch report on human-rights abuses in Uganda.

The IJ found Mr. Nalwamba credible in most respects but deficient in satisfying the standards for relief. The IJ determined that the episodes before 1986 were “removed in time to such an extent that they are of limited relevance,” id. at 9, and that the events occurring during the Museveni regime, after 1986, amounted to harassment, not persecution. The BIA affirmed. In his petition for review Mr. Nalwamba contends that the cumulative effect of his mistreatment constitutes persecution; he was not merely harassed; conditions in Uganda have actually deteriorated since he left; and he is likely to be tortured if removed to Uganda.

II

“We review BIA legal determinations de novo,” Herrera-Castillo v. Holder, 573 F.3d 1004, 1007 (10th Cir.2009), and factual findings for substantial evidence, see Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir.2008). Under the substantial-evidence standard, agency findings “are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Id. (internal quotation marks omitted). “[T]he ultimate determination whether an alien has demonstrated persecution is a question of fact, even if the underlying factual circumstances are not in dispute and the only issue is whether those circumstances qualify as persecution.” Id.

Where, as here, a single member of the BIA issues a brief order affirming the IJ’s decision, we “will not affirm on grounds raised in the IJ decision unless they are relied upon by the BIA in its affirmance.” Sarr v. Gonzales, 474 F.3d 783, 790 (10th Cir.2007) (internal quotation marks omitted). We may, however, “consult the IJ’s opinion to the extent that the BIA relied upon or incorporated it.” Id.

To qualify for asylum, an alien must show that he “has suffered past persecution or has ‘a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’ ” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir.2005) (alteration and footnote omitted) (quoting 8 U.S.C. § 1101(a)(42)(A)). An alien who has suffered past persecution is “ ‘presumed to have a well-founded fear of persecution on the basis of the original claim,’ ” although the government may rebut that presumption by showing such “ ‘a fundamental change in circumstances ... that the applicant no longer has a well-founded fear of persecution.’ ” Ba v. Mukasey, 539 F.3d 1265, 1268 (10th Cir.2008) (quoting 8 C.F.R. § 1208.13(b)(1)(i)(A)).

A. Cumulative Impact

Mr. Nalwamba claims that the cumulative impact of his experiences in Uganda qualifies as persecution. We agree that Mr. Nalwamba’s experiences may be considered cumulatively. See Witjaksono v. Holder, 573 F.3d 968, 977 (10th Cir.2009). For the following reasons, however, we affirm the decision that they do not constitute persecution.

1. Pre-1986 Events

First, noting that the IJ focused on events that occurred after President Museveni took office in 1986, Mr. Nalwamba asserts that the IJ improperly discounted earlier instances of misconduct. We disagree. We have recognized that a change in government in the proposed country of removal can be “highly probative” on the issue of persecution, Krastev v. INS, 292 F.3d 1268, 1278 (10th Cir.2002), particularly when the alleged act of persecution is remote in time, see Woldemeskel v. INS, 257 F.3d 1185, 1190 (10th Cir.2001) (rejecting alien’s past-persecution claim because her 12-month imprisonment “occurred several years ago” under a different regime); see also Yuk v. Ashcroft, 355 F.3d 1222, 1235 (10th Cir.2004) (significance of threat diminished by lengthy passage of time). Here, the IJ acknowledged Mr. Nalwamba’s “many encounters with the authorities over the years,” Admin. R. at 9, but found that “the most relevant circumstances occurred during the Museveni period of time[,] which has existed for the last 20 years in Uganda,” because that period was “significantly different” from the pre-Museveni era, id. at 16-17. The IJ’s approach was not unreasonable. Nearly 30 years had passed between the time Mr. Nalwamba was first mistreated and the time he left Uganda. During that time Uganda underwent several regime changes, finally culminating in President Museveni’s assumption of power in 1986. The passage of time, coupled with the governmental changes, justified the IJ’s treatment of Mr. Nalwamba’s older adverse experiences.

2. Post-1986 Events/Harassment vs. Persecution

Next, Mr. Nalwamba contends that the BIA mischaracterized his post-1986 experiences as mere harassment. He asserts that the abduction, interrogations, and threats against him qualify as persecution. Again, we disagree. “Persecution is the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive and requires more than just restrictions or threats to life and liberty.” Witjaksono, 573 F.3d at 976 (internal quotation marks omitted). Mr. Nalwamba surely suffered from egregious misconduct, but substantial evidence supports the BIA’s conclusion that the misconduct to which he was subjected was more akin to harassment than persecution. His own expert described him as belonging to the category of “public individuals” who “have been periodically harassed.” Admin. R. at 154. And Mr. Nalwamba’s testimony depicted incidents that, threatening as they may have been, fell short of the extreme action necessary to establish persecution. Indeed, as the BIA noted, several of Mr. Nalwamba’s experiences involved his intervening on behalf of others. Although he was twice detained and interrogated, his detentions were relatively brief and resulted in no physical harm. Cf. Kapcia v. INS, 944 F.2d 702, 704-05 (10th Cir.1991) (finding no past persecution when aliens were harassed, imprisoned, beaten, interrogated, and conscripted into military service). Even the threats against him could be viewed as not so “immediate and menacing” as to constitute persecution. Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir.2003). Therefore, given the evidence, we cannot say that every reasonable adjudicator would be compelled to reach a contrary conclusion.

B. Improved Country Conditions

Mr. Nalwamba also contends that the agency improperly rejected his future-persecution claim on the basis of improved conditions in Uganda since he left. This argument has no merit, however, because Mr. Nalwamba failed to establish the past persecution that would create a rebuttable presumption of future persecution and place the burden on the DHS to prove changed conditions. See Ba, 539 F.3d at 1268. Indeed, the BIA’s decision makes no mention of changed conditions. To the extent that Mr. Nalwamba is contending that he established, without the benefit of the presumption arising from past persecution, a well-founded fear of future persecution, we think that the IJ and BIA reasonably viewed the evidence in rejecting this claim. Thus, Mr. Nalwamba was ineligible for asylum and, consequently, unable to satisfy the more stringent standard for restriction on removal. See id. at 1271.

C. CAT Relief

Finally, Mr. Nalwamba asserts that he was wrongfully denied CAT relief. To obtain protection under the CAT, an alien “must show that ‘it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Sarr, 474 F.3d at 788 (quoting 8 C.F.R. § 1208.16(c)(2)). Citing examples of documented torture, Mr. Nalwamba claims that it is more likely than not that he will be tortured if returned to Uganda. But none of this documentary evidence involves him individually. The BIA reasonably found that he failed to establish entitlement to CAT protection. See Yuk, 355 F.3d at 1236. We therefore reject Mr. Nalwamba’s CAT claim.

The petition for review is DENIED.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Fed. R.App. P. 32.1 and 10th Cir. R. 32.1.