Felix Zihumo v. Jefferson Sessions, III

Case: 16-60113 Document: 00514017592 Page: 1 Date Filed: 06/02/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 16-60113 FILED
Summary Calendar June 2, 2017
Lyle W. Cayce
Clerk
FELIX ZVIKOMBORERO ZIHUMO,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A200-655-168
Before STEWART, Chief Judge, and JOLLY and JONES, Circuit Judges.
PER CURIAM: *
Felix Zvikomborero Zihumo, a native and citizen of Zimbabwe, petitions
for review of a decision of the Board of Immigration Appeals (BIA) affirming
the denial of his applications for withholding and cancellation of removal
following an adverse credibility determination by the immigration judge (IJ).
He does not challenge the denial of his asylum application as untimely or the
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 16-60113
determination that he waived any claim for relief under the Convention
Against Torture.
Because the BIA reviewed the IJ’s credibility finding for clear error, we
will review the IJ’s decision to the extent it impacted the decision of the BIA.
See Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). According to Zihumo,
the IJ cherry-picked evidence to support the adverse credibility finding and did
not consider totality of the circumstances as required under 8 U.S.C.
§ 1158(b)(1)(B)(iii). The detailed and extensive rationale for the credibility
finding clearly reflects that both the IJ and the BIA considered the totality of
the circumstances.
In addition, Zihumo asserts that the IJ improperly speculated that he
could not fear for his life if he returned to Zimbabwe and also want to return
one day. The IJ did not speculate that a person could not fear returning to a
country and also want to return. Instead, the IJ questioned the suspicious
timing of Zihumo’s changed outlook on whether it would be safe for him to
return to Zimbabwe, which coincided with the expiration of his student visa.
According to Zihumo, the IJ also erred by relying on his smug demeanor
and his smirking during the hearing without noting the behaviors on the
record or asking him about them. The IJ properly relied on his observations.
See § 1158(b)(1)(B)(iii).
Zihumo also disputes the finding that his testimony was the only
evidence supporting his allegations of persecution. He cites as corroborating
evidence the testimony of an official with the Movement for Democratic
Change (MDC), written documentation in the record of the political situation
in Zimbabwe, a statement purportedly signed by his parents, a report issued
by the United States Embassy, and reports by the State Department. The
party official did not testify about Zihumo’s alleged political activities in
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No. 16-60113
Zimbabwe, his encounters with the ruling party, or the experiences of his
family members. Indeed, the official indicated that Zihumo would be safe in
Zimbabwe if he refrained from intervening in conflicts between MDC
supporters and forces loyal to Zimbabwean President Robert Mugabe.
Accordingly, the testimony did not corroborate Zihumo’s allegations or show
that he faces a clear probability of persecution.
Similarly, the reports about conditions in Zimbabwe do not corroborate
Zihumo’s personal story. The only corroborating evidence he cites is an
unsworn statement purportedly signed by his parents. Such unverified
evidence alone does not establish a clear probability of persecution in light of
the adverse credibility finding. See Zhang v. Gonzales, 432 F.3d 339, 345 (5th
Cir. 2005).
For all of these reasons, Zihumo fails to satisfy the substantial evidence
standard with respect to the adverse credibility finding, see Wang, 569 F.3d at
538-39, and fails to show that he is entitled to withholding of removal, see
Hongyok v. Gonzales, 492 F.3d 547, 550 (5th Cir. 2007).
Zihumo also contends that the BIA erred in affirming the denial of
cancellation of removal because the IJ did not consider the evidence of his
daughter’s asthma and the associated risks she would face upon return to
Zimbabwe. We lack jurisdiction to review the finding that Zihumo failed to
show that his removal would result in exceptional and extremely unusual
hardship to his daughter. See Sung v. Keisler, 505 F.3d 372, 377 (5th Cir.
2007).
The petition for review is DENIED.
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