Kompany v. Gonzales

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
May 31, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-60851
_____________________
MONIQUE VULA SHAKENA KOMPANY,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
_________________________________________________________________
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 274 160
_________________________________________________________________
Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.
PER CURIAM:*
Monique Vula Shakena Kompany appeals the dismissal by the
Board of Immigration Appeals (“BIA”) of her appeal of the
Immigration Judge’s (“IJ”) denial of her application for asylum,
withholding of removal, and relief under the Convention Against
Torture (“CAT”). Claiming that she was imprisoned and brutally
raped for her political opinions and associations, Kompany argues
that substantial evidence in the record does not support the IJ’s
finding that Kompany is not credible. Kompany presents a very
sympathetic case. We are not, however, finders of fact. That task
*
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this opinion should not be published and is not precedent except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.
belongs to the BIA and to the IJ, which discredited her testimony
and rejected her claims. Our sympathy for her story,
notwithstanding, we are bound by the rules and the precedents and
must DENY the petition.
I.
Kompany testified to the following: She is a citizen of the
Democratic Republic of Congo (“Congo”), a country rife with civil
war and military unrest. Her husband, now deceased, was a founding
and active member of “Mouvement de Solidarite pour la Democratie et
la Protection des Enfants,” which, translated, means “Solidarity
Movement for Democracy and Child Protection” (“SMDCP”). SMDCP
sought to return the majority age from 14 back to 18 by educating
the public and voicing their concerns to public officials. SMDCP
was founded by a group of lawyers and doctors, that is, by parents
whose children had been raped or enrolled by force in the military.
SMDCP held meetings once a month, in hiding.
Kompany last saw her husband alive in Congo in 1998 when he
dropped her off at work and drove to the hospital where he worked
as a physician. On his way to the hospital, he saw a group of
people gathered around a twelve-year-old girl lying on the ground,
bleeding. Kompany’s husband approached the girl, attempting to
save her life. A fourteen-year-old military soldier told him to
leave because it was none of his business, and the soldier shot and
killed Kompany’s husband.
2
Kompany eventually obtained the arrest of the fourteen-year-
old soldier who murdered her husband. The soldier was in prison
only briefly and then disappeared. One day, Kompany returned to
her house after Sunday services to find a threat note reading: “YOU
ARE DEAD.” She fled with her family to her uncle’s house and
stayed there for a month until she read in the newspaper that the
soldier who murdered her husband had been killed while stealing in
a house.
Although Kompany’s husband was a founding and active member of
SMDCP, Kompany did not begin attending SMDCP meetings until 1999,
after her husband’s death. Although she did not consider herself
a member, she was a “sympathizer” and assisted SMDCP by using her
work printer and copier to publish documents for SMDCP. Kompany
also provided SMDCP with ideas for helping children and women,
ideas such as making baskets and preparing salted fish to sell.
On May 12, 2002, Kompany was publishing documents for SMDCP at
work when she heard a commotion outside the building. She got up
to see what was causing the commotion, when military soldiers
entered and ordered her and her colleagues to sit down. The
soldiers searched her office and found the SMDCP documents. The
soldiers arrested her and two of her colleagues and took them to
prison.
At the prison, soldiers beat Kompany with “concentrated
plastic,” leaving scars on her back. One of the weapons pierced
Kompany’s right index finger and came out the other side,
3
permanently injuring it. The soldiers tied Kompany’s hands
together with thick string, permanently injuring her wrists. They
also beat her with an electric cord.
The soldiers imprisoned Kompany for a month. They raped
Kompany repeatedly, at least three times per week. Kompany
testified that they each took their turn, and they were different
soldiers each time. According to Kompany’s testimony, “[t]he place
they took was [sic] all dark, black. It was a small area, we were
numerous. When they called you to get a coffee, it depended on the
day, but maybe one or two performed the act.” In her asylum
application, she stated: “After two weeks I was allowed to go
outside the cell to cook and clean for the gaurds [sic], who when
ever [sic] they wanted would point their gun at you while their
friend is violently raping you. Some of them are younger than my
kids but what can you do? You cry you feel bad you are hurt but
before you recover they do it again.”
The soldiers fed Kompany and the other prisoners twice each
week. Kompany and the other prisoners took showers once or twice
per week. The prison was “very dirty,” causing extensive black
blemishes, like pimples, on Kompany’s skin: “It, it was starting,
my skin was just eating me because of the, the dirt we were, it was
the sanitary conditions that caused it, my skin to, to just break
out like this and we went to the bathroom, you know, on the floor,
on the ground.”
4
At one point, soldiers placed a woman who was bleeding
severely in Kompany’s cell. The woman bled to death. The smell of
the corpse became unbearable, and she and other prisoners asked the
soldiers to remove the body. It is unclear what precisely occurred
at this point, for Kompany testified that the soldiers proceeded to
beat her and hit her in the stomach, causing her to bleed
excessively. She testified that she “was swelling everywhere
because of the beatings.” However, she stated in her written
statement and asylum application that she was raped violently by
two guards, causing her to bleed excessively. Regardless of the
cause, she endured the pain for four days, and on the fifth day,
she hemorrhaged and lost consciousness. When she regained
consciousness, she found herself in Ngaliema Hospital left to die.
In Ngaliema Hospital, Kompany was treated by Dr. Nzambi, a friend
of her late husband, and found out she was pregnant. Dr. Nzambi
feigned Kompany’s death and paid off a guard. Soldiers later
visited Kompany’s house and neighborhood to see if she was really
dead.
According to Kompany’s testimony before the IJ, she was taken
to the hospital on July 13, 2002. She testified that she spent 17
days at the hospital, and that on July 31, Dr. Nzambi gave her a
passport and took her to the U.S. Embassy to obtain a tourist visa
to the United States. She testified that she stayed at Dr.
Nzambi’s house and left Congo on August 15, 2002. Two days later,
on August 17, Kompany arrived in the United States. In the United
5
States, Kompany applied for asylum, withholding of removal, and
relief under CAT, with the aid of an acquaintance who translated
and filled out the application for her.
Before the IJ, Kompany presented her own testimony and the
testimony of Lokwekim Matadi, a lawful permanent resident of the
United States. Matadi attended school with Kompany’s late husband
and left Congo in 1989. In 1997, Matadi traveled to Congo and
stayed there nine months. During his nine months in Congo, Matadi
visited Kompany’s late husband’s home three or four times. During
his visits, Matadi met Kompany, and at the immigration hearing,
Matadi identified Kompany as the wife of his late friend, the woman
he met while visiting the home of his late friend. He also
testified that the couple had two children at the time, confirming
an earlier statement by Kompany alleging the same. Furthermore,
Matadi testified that Kompany’s late husband was involved in an
organization to protect and help children. He identified the
organization as “Movement for Child Development and Protection.”
Matadi further testified that Kompany helped promote the agenda of
the organization after her husband’s death, but apparently this was
not based on firsthand knowledge, because he also testified that he
had no contact with Kompany after he left Congo in 1997 until he
saw her on January 13, 2004 at the hearing before the IJ.
Ultimately, the IJ found Kompany not credible and therefore
rejected her claims for relief. In his opinion, the IJ stated:
“After observing the respondent’s demeanor while testifying, and
6
comparing her testimony with her written application for asylum,
the truth of which she swore to, the Court finds the respondent is
not credible.” Specifically, the IJ noted numerous inconsistencies
in Kompany’s testimony, written statement, and asylum application,
including: her level of involvement in SMDCP; the identity of the
founders of SMDCP; the year of Kompany’s arrest; the details of
Kompany’s arrest; the details of Kompany’s stay at Ngaliema
Hospital, visit to the U.S. Consulate, and subsequent hiding at Dr.
Nzambi’s house; and her failure to mention her cousin Gisele
Nzazi’s death in her written statement and asylum application. The
IJ also discredited Kompany’s story because she failed to seek
treatment for multiple forced sex partners after she arrived in the
United States. In this light, the IJ acknowledged Matadi’s
testimony but found it insufficient to rehabilitate Kompany’s
testimony. Additionally, the IJ found Kompany’s documentary
evidence to be of little evidentiary value and therefore
insufficient to overcome its adverse credibility determination.
Because the IJ found Kompany not credible, he rejected all of her
claims for relief.
Kompany appealed the IJ’s decision to the BIA and argued,
inter alia, that the IJ’s adverse credibility determination was
clearly erroneous.1 The BIA affirmed in a one-page order. On
1
Because Kompany argued the general issue of credibility
before the BIA, she has exhausted her administrative remedies. See
Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (“An alien
fails to exhaust his administrative remedies with respect to an
7
appeal, Kompany petitions this Court to vacate the BIA’s order,
arguing that substantial evidence does not support the IJ’s finding
that she is not credible.
II.
We have authority to review an order of the BIA and may
consider the IJ’s underlying decision only if it impacted the BIA’s
decision. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997)
(citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)). Here, the
BIA dismissed Kompany’s appeal of the IJ’s decision denying her
request for asylum, withholding of removal, and protection under
CAT. The BIA concluded that the IJ’s adverse credibility
determination was not clearly erroneous. Because the BIA
essentially adopted the IJ’s decision, we must review the IJ’s
decision. See Mikhael, 115 F.3d at 302.
On a petition for review of a BIA decision, we review
questions of law de novo and factual findings for substantial
evidence. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.
2001). “Under substantial evidence review, we may not reverse the
BIA’s factual determinations unless we find not only that the
issue when the issue is not raised in the first instance before the
BIA-either on direct appeal or in a motion to reopen.” (citing
Goonsuwan v. Ashcroft, 252 F.3d 383, 388-89 (5th Cir. 2001))).
Accordingly, the issue of credibility is properly before this
Court. See 8 U.S.C. § 1252(d)(1) (“A court may review a final
order of removal only if the alien has exhausted all administrative
remedies available to the alien as of right[.]”).
8
evidence supports a contrary conclusion, but that the evidence
compels it.” Chun, 40 F.3d at 78. This means “the alien must show
that the evidence was so compelling that no reasonable factfinder
could conclude against it.” Id.“Credibility determinations are given great deference.” Efe
v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002). “[I]t is the
factfinder’s duty to make determinations based on the credibility
of the witnesses.” Chun, 40 F.3d at 78 (citing Vasquez-Mondragon
v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977)). “The panel cannot
replace the Board or IJ’s determinations concerning witness
credibility or ultimate factual findings based on credibility
determinations with its own determinations.” Efe, 293 F.3d at 905
(citing Vasquez-Mondragon, 560 F.2d at 1226); see Chun, 40 F.3d at
78. “As we have previously made emphatically clear, ‘[w]e will not
review decisions turning purely on the immigration judge’s
assessment of the alien petitioner’s credibility.’” Chun, 40 F.3d
at 78 (citing Mantell v. INS, 798 F.2d 124, 127 (5th Cir. 1986)).
This is not an all-inclusive rule, however, for “we have not read
[Chun] to mean that credibility determinations that are unsupported
by the record and are based on pure speculation or conjecture will
be upheld.” Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir.
2006).2 Nevertheless, like other factual determinations, “a
2
Accordingly, in limited instances, we have granted a
petition and remanded for a reconsideration of credibility. See,
e.g., Zhongne Li v. Gonzales, 184 Fed.Appx. 400 (5th Cir. 2006)
(unpublished); Guan v. Ashcroft, 121 Fed.Appx. 563 (5th Cir. 2005)
9
credibility determination may not be overturned unless the record
compels it.” Lopez De Jesus v. INS, 312 F.3d 155, 161 (5th Cir.
2002).
III.
The question before us is whether the record “compels” the
conclusion that the IJ erred in finding Kompany not credible. See
Lopez De Jesus, 312 F.3d at 161. We conclude that it does not.
The IJ correctly noted inconsistencies in Kompany’s accounts about
the year of her arrest and the details surrounding her stay at
Ngaliema Hospital, her visit to the U.S. Consulate, and her
subsequent hiding at Dr. Nzambi’s house. As to the year of her
arrest, Kompany stated in her asylum application and written
statement that she was arrested on May 12, 2002, and although she
ultimately testified that 2002 was the correct year, she initially
testified twice, incorrectly, that the year was 1998.3 Similarly,
Kompany testified and indicated in her written statement that she
arrived at the hospital on July 13, 2002, whereas her asylum
application listed the date as July 31, 2002. As to the other
details, Kompany stated in her asylum application that she spent 5
days in the hospital and 2 weeks at Dr. Nzambi’s brother’s house.
In her written statement, she stated that she spent 5 days at the
(unpublished); cf. Mwembie, 443 F.3d at 409-14 (rejecting the IJ’s
adverse credibility determination but denying the petition on other
grounds).
3
The IJ also stated that Kompany testified that the year was
2000. We find no such testimony in the record.
10
hospital and 6 weeks at Dr. Nzambi’s brother’s house. At the
hearing, she testified that she spent 17 days at the hospital and
5 days at Dr. Nzambi’s house. In our view, these inconsistencies
seem peripheral to her fundamental claims of torture on grounds of
political association, and seem explainable by the trauma she
suffered and by translation and other minor errors. Although we
believe these inconsistencies may be explainable and are on the
outer perimeter of materiality, they nevertheless support the IJ’s
credibility determination, and the IJ is entitled to rely on them.
Thus, we cannot say that “no reasonable factfinder could conclude
against [Kompany].” See Chun, 40 F.3d at 78. Nor can we say that
the evidence compels a conclusion contrary to the factfinder’s, and
accordingly, we conclude that there is substantial evidence
sufficient to support the IJ’s adverse credibility determination.
See id.4
We do not reach this conclusion lightly. The events described
by Kompany, if true, are atrocious. On the record before us, we
would likely reach a different conclusion, for we view many of the
IJ’s findings of inconsistency as readily explainable. For
example, while the IJ concluded that Kompany testified
4
The REAL ID Act of 2005 altered the standard of review for
credibility determinations. See § 8 U.S.C. § 1158(b)(1)(B). The
Act does not apply to Kompany’s application, however, because she
filed her application prior to May 11, 2005, the effective date of
the Act. The Act specifically limits its applicability to
applications made on or after its effective date. See REAL ID Act
§ 101(h)(2), Pub. L. 109-13, 119 Stat. 302, 305; see also Dhima v.
Gonzales, 416 F.3d 92, 95 n.3 (1st Cir. 2005).
11
inconsistently about her level of involvement in SMDCP, we read the
record to indicate that she consistently described herself not as
a “member” but as a “sympathizer” who only attended meetings,
published documents, and provided SMDCP with ideas for helping
children and women. Furthermore, any misunderstandings about her
level of commitment in SMDCP appear to have arisen out of a
misunderstanding about whether the pronoun “you” in questions by
counsel referred to Kompany alone or to SMDCP as a whole.
Similarly, we see no inherent inconsistency in Kompany’s
explanation of who founded SMDCP. In her asylum application and
written statement, Kompany asserted that SMDCP was founded by
parents of children raped or drafted by the military at a young
age, whereas she testified that it was founded by lawyers and
doctors, including her husband. These assertions by Kompany are
not necessarily inconsistent, for some of the lawyers and doctors
could have been the parents of children raped or drafted at a young
age.
As to the details of Kompany’s arrest, it seems to us that
Kompany consistently explained in her testimony, written statement,
and asylum application that she was at work and heard noises
outside; she got up to investigate but soldiers entered the
building and commanded her to go back and sit down; and she was
taken away by the soldiers after they found the SMDCP documents.
To us, the inconsistencies perceived by the IJ were not necessarily
inconsistencies but only differences in the number of details that
12
Kompany included in each account. The more important issue to us
is that Kompany consistently stated in all three accounts that the
soldiers arrested her after they saw the SMDCP documents she had
published, thus explaining the reason for her arrest.
Nor do we conclude that Kompany’s credibility is diminished by
her failure to mention in her asylum application and written
statement the death of her cousin Gisele Nzazi and for failing to
show that Nzazi died on account of “a ground enumerated within the
Act.” The record clearly demonstrates that Kompany never argued or
alleged that her right to asylum or withholding of removal or
relief under CAT was related to Nzazi’s death. Instead, she
mentioned Nzazi’s death only to respond to a specific question by
counsel asking whether any of her other relatives had experienced
trouble in Congo. Because Nzazi’s death seems immaterial to
Kompany’s claims for relief, we fail to see why her failure to
mention his death in her written statement or asylum application
affects her credibility.
Finally, we do not understand why the IJ discredited Kompany’s
story because she failed to seek medical treatment for multiple
forced sex partners. It is unclear to us how Kompany, under her
particular circumstances, would have known that she should seek
such treatment or how she would have obtained such treatment.
Nevertheless, although we might well have reached an opposite
conclusion if we were to sit as the factfinder in this case, that
role is not ours. See Chun, 40 F.3d at 78 (“it is the factfinder’s
13
duty to make determinations based on the credibility of the
witnesses”). We are unable to “replace the ... IJ’s determinations
concerning witness credibility or ultimate factual findings based
on credibility determinations with [our] own determinations.” See
Efe, 293 F.3d at 905. Because the evidence does not compel a
contrary conclusion, see Chun, 40 F.3d at 78, we must affirm the
IJ’s adverse credibility determination. Accordingly, we cannot
grant Kompany the relief she seeks.
IV.
For the foregoing reasons, we deny Kompany’s petition for
review.
PETITION DENIED.
14