Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-20-2007

Kibinda v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 05-4237




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                                            PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                   No. 05-4237


    VALERIO FORTUNATO TUALI KIBINDA,

                               Petitioner

                          v.

          ATTORNEY GENERAL OF
      THE UNITED STATES OF AMERICA,

                          Respondent


          On Petition for Review from an
     Order of the Board of Immigration Appeals
              (Board No. A95 381 152)
     Immigration Judge: Charles M. Honeyman


             Argued January 8, 2007
Before: McKEE, AMBRO and FISHER, Circuit Judges.

             (Filed: February 20, 2007)
Hyung P. Steele (Argued)
Pepper Hamilton
18th and Arch Streets
3000 Two Logan Square
Philadelphia, PA 19103

Michael S. Hino (Argued)
Pepper Hamilton
899 Cassatt Road
400 Berwyn Park
Berwyn, PA 19312
      Attorneys for Petitioner

Richard M. Evans
Paul Fiorino
Susan K. Houser (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, DC 20044
       Attorneys for Respondent


                 OPINION OF THE COURT


FISHER, Circuit Judge.
     Valerio Kibinda seeks review of an order of the Board of
Immigration Appeals (“BIA”) affirming the denial of his request

                              2
for asylum, withholding of removal, and relief under the
Convention Against Torture (“CAT”). We have jurisdiction to
review the petition pursuant to 8 U.S.C. § 1252(a) and will deny
the petition.
                     I. BACKGROUND
        Petitioner Valerio Kibinda, a native and citizen of
Angola, is from Cabinda, an oil-rich area administered as an
exclave of Angola since Cabindan and Angolan liberation from
Portuguese rule in 1975. Many Cabindans believe that their
region should be autonomous but the Angolan government
strongly suppresses any such notion. A full-scale civil war
between a Cabindan separatist group, the “Frente para a
Libertação do Enclave de Cabinda” (“Front for the Liberation of
the Enclave of Cabinda – FLEC”), and Angolan government
forces has been ongoing since 1993.1 The United States
Department of State, an ad-hoc commission of the United
Nations, and various humanitarian organizations report that both
Angolan government forces and FLEC have committed human
rights abuses against their perceived enemies in the course of
this bloody dispute.


       1
        Conflict between the Angolan government and FLEC
stretches back to 1975, when Marxist Angolan forces, the
“Movimento Popular de Libertação de Angola” (“Popular
Movement for the Liberation of Angola – MPLA”), invaded
Cabinda, overthrew the provisional government that had been
formed by FLEC, and annexed the region to Angola. Cabinda
is ethnically and linguistically distinct from the rest of Angola
and geographically disconnected from the country.

                               3
        At age sixteen, Kibinda was identified by the Angolan
government as a talented student and sent, allegedly against his
will, to Cuba for five years of training at a military institute.
After that training was complete, Kibinda was inducted into the
Angolan army, again allegedly against his will, and transferred
to Angolan army headquarters in the capital city of Luanda. By
this time, the Angolan army was fighting rebel forces within
Angola, primarily the “União Nacional para a Independência
Total de Angola” (“National Union for the Total Independence
of Angola – UNITA”), but also FLEC separatist rebels in
Cabinda.
        During the time Kibinda was stationed in Luanda, an
incident occurred that forms part of the basis of Kibinda’s claim
of past persecution in this case. An order was issued by the
Angolan army requiring that all officers remain inside the
Luandan military complex due to a violent protest that was
being held in the city by the Bakongo ethnic group. Kibinda
was discovered returning to his barracks from an overnight stay
outside the military complex, which was in violation of the
order, and was detained for five days as a result. Describing this
incident in his original asylum application, Kibinda stated that
he had been arrested and tortured for five days for participating
in the Bakongo protest.
       However, in an addendum to his affidavit, submitted the
day before his immigration hearing, Kibinda retracted this
claim.2 He reiterated that he was detained for five days, but the


       2
       The first paragraph of this addendum reads:
       My original affidavit . . . contains a mistake. . . .

                                4
only abuse he described was an incident in which a guard threw
an unidentified heavy object into a cell Kibinda shared with six
other soldiers. That object hit Kibinda in the jawbone, causing
an injury requiring seven stitches. He made no further
allegations of abuse or torture in this addendum and attributed
the “incorrect” statements in his original affidavit to an error in
translation.
       No further repercussions occurred after the five-day
detention, and four months later Kibinda was selected for officer
training. He graduated from that training as a first lieutenant
and was shortly thereafter selected along with twenty five other
officers for even further military training in Rio de Janeiro,
Brazil. While in Brazil, Kibinda studied war tactics, earned an
accounting degree from a Brazilian university, and met and
married a Brazilian citizen. In the course of the training
program, Kibinda was assigned to monitor a younger Cabindan
cadet. In 2000, at the end of the program, this cadet told
Kibinda of his plans to flee to the Netherlands and seek asylum
there. The cadet gave Kibinda a copy of a FLEC membership
card that had previously belonged to Kibinda’s cousin, telling



     [I]t refers to an incident in 1993 where I was
     imprisoned for a period of five days. . . . [I]t
     states that I was accused of taking part in the
     Bakongo Revolt of 1992, and that I had been
     tortured while in custody and sustained injuries
     that required me to be hospitalized for one month.
     This is incorrect.
Addendum to Respondent’s Affidavit at 1.

                                5
Kibinda that it would help him find support and assistance from
fellow Cabindans in other countries. Kibinda testified that this
FLEC card was discovered by an officer with whom he shared
living quarters and turned over to his superiors.
        Kibinda took the Cabindan cadet to the airport under the
pretense that the cadet was returning to Angola as expected.
Instead, the cadet fled to the Netherlands as planned. When the
cadet failed to report back to army headquarters in Angola,
Kibinda was called in for questioning by his commander.
Kibinda alleges that he was told he would be held accountable
if the cadet did not return to Angola. After this confrontation,
Kibinda decided to leave Brazil and flew to the United States on
a valid tourist visa, apparently with the intention of traveling on
to Canada to seek asylum there. He never went to Canada,
however, but returned two months later to Brazil to collect back
pay of $6,000.00, which was half of what he was owed by the
Angolan army. While back in Brazil, Kibinda was promoted to
the rank of lieutenant and ordered back to Angola, where he was
told he could collect the remainder of his back pay. Suspecting
that the promotion was merely a ruse to “entice” him back to
Angola for punishment, he returned to the United States on his
still-valid tourist visa. His wife joined him on December 23,
2001. On January 10, 2002, Kibinda, acting pro se, filed a
timely asylum application.
        At Kibinda’s hearing, the immigration judge (“IJ”) found
that an adverse credibility determination was not warranted, and
that Kibinda had a genuine subjective fear of persecution.
However, he found Kibinda’s subjective fear of persecution was
objectively unreasonable in light of the record. Specifically, he
pointed to the investment made in Kibinda by the Angolan

                                6
government, and found that Kibinda’s record of promotion
within the army suggested that he was trusted and valued by the
army and thus unlikely to be persecuted. In addition, he cited
the general rule that fear of conscription and punishment for
desertion cannot form the basis of a cognizable asylum claim,
and found that Kibinda failed to qualify for an exception to that
rule.
       Consequently, the IJ concluded that Kibinda’s fear of
persecution was not “well founded” and denied his request for
asylum.3 Because Kibinda had not met the lower standard of
proof for establishing an asylum claim, the IJ concluded that he
necessarily did not qualify for withholding of removal. As for
the CAT claim, the IJ found that the evidence in the record did
not establish that Kibinda was likely to be tortured if removed
to Angola. Kibinda appealed the IJ’s decision to the BIA and
submitted a motion to admit new evidence on appeal, which was
properly denied.4 The BIA affirmed the decision of the IJ,


       3
        Alternatively, the IJ found that even if Kibinda had met
his burden of establishing statutory eligibility for asylum,
asylum should be denied in the exercise of discretion because
“respondent has not met his burden of proving by a
preponderance of the evidence that he merits a favorable
exercise of discretion because he has not proven that he could
not acquire legal immigration status in Brazil.”
       4
        We review the BIA’s refusal to reopen the record to
include supplemental documents and remand to the IJ for abuse
of discretion. Ezeagwuna v. Ashcroft, 

, 405 (2003).
The BIA found that Kibinda had failed to adequately explain

                               7
adopting its findings and reasoning. Kibinda filed a timely
petition for review.
                       II. DISCUSSION
        In this case, because the BIA adopted the reasoning of
the IJ in its decision, we review the decision of the IJ. Abdulai
v. Ashcroft, 

, 549 n.2 (3d Cir. 2001). We must
uphold the IJ’s findings if there is substantial evidence in the
record to support them, which is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Senathirajah v. INS, 

, 216 (3d Cir.
1998) (citation omitted). Under this deferential standard, the
IJ’s “finding must be upheld unless the evidence not only
supports a contrary conclusion, but compels it.” Abdille v.
Ashcroft, 

, 483-84 (3d Cir. 2001) (citing INS v.
Elias-Zacarias, 

, 481 (1992)).
       A.     Asylum
       Kibinda first argues that there is not substantial evidence
for the IJ’s conclusion that he was not statutorily eligible for
asylum. To be eligible by statute, an asylum applicant must
demonstrate refugee status by showing past persecution or a
well-founded fear of future persecution. 8 U.S.C. § 1158(b)(1).


why these documents, which predated his hearing before the IJ,
were previously unavailable. Furthermore, the BIA found that
these documents were inconsistent with Kibinda’s own
testimony. Therefore, the BIA did not abuse its discretion in
refusing to supplement the record and remand for further
proceedings.

                                8
In order to establish past or future persecution, an applicant must
“show past or potential harm rising to the level of persecution on
account of a statutorily enumerated ground that is committed by
the government or by forces the government is unable or
unwilling to control.” Fiadjoe v. Att’y Gen., 

, 160
(3d Cir. 2005) (citation omitted). A showing of past persecution
gives rise to a rebuttable presumption of a well-founded fear of
future persecution. 8 C.F.R. § 1208.13(b)(1).
       1.     Past Persecution
       At the outset, we dismiss out of hand Kibinda’s claim of
past persecution in the form of “torture” during his five-day
detention by the Angolan army. Kibinda argues that the IJ failed
to “develop” the torture claim at Kibinda’s hearing. However,
as already 

, Kibinda unequivocally retracted this
claim in an amendment to his asylum application, describing it
as a mistake attributable to an error in translation. In addition,
Kibinda swore at his immigration hearing that the entire
substance of his application for asylum, as amended, was true
and correct. It is self evident that an IJ has no obligation (or
authority, for that matter) to reach back into the record to revive
and “develop” a claim that a petitioner has explicitly disavowed.
Thus, we reject any attempts by Kibinda to now reassert a claim
of “torture.”
         Even so, past persecution need not rise to the level of
torture to be grounds for asylum. In Fatin v. INS, 

(3d Cir. 1993), we accepted the BIA’s definition of the term
“persecution” to include “threats to life, confinement, torture,
and economic restrictions so severe that they constitute a threat
to life or freedom.” 

We made clear that persecution

                                9
refers only to “severe” conduct and “does not encompass all
treatment our society regards as unfair, unjust or even unlawful
or unconstitutional.” 

by the Angolan army and the
attendant circumstances of that detention simply do not rise to
the level of persecution as we have defined it. In order to form
the basis for an asylum claim, the conduct complained of must
be “extreme.” 

(“‘[P]ersecution’ is an extreme
concept that does not include every sort of treatment our society
regards as offensive.”). The maltreatment Kibinda experienced
at the hands of prison guards, as offensive as it may be, was far
from unusual or extreme. In addition, the injury Kibinda
suffered as a result of this maltreatment, though it left a scar,
was certainly not severe, requiring as it did only a few stitches.
See Voci v. Gonzales, 

, 615 (3d Cir. 2005) (“[O]ur
cases suggest that isolated incidents that do not result in serious
injury do not rise to the level of persecution.”) (3d Cir. 2005).
While we do not mean to suggest that the severity of an injury
should be measured in stitches, Kibinda has provided no other
objective evidence to demonstrate that the single injury he
suffered was severe enough to constitute persecution under our
stringent standard.5




       5
        An alien’s testimony by itself, if credible, can satisfy the
burden of establishing a claim for relief by objective evidence.
See 8 C.F.R. § 208.13(a); Dia v. Ashcroft, 

, 247 (3d
Cir. 2003). Here, Kibinda’s testimony did not satisfy that
burden.

                                10
        Furthermore, even assuming that the injury was severe
enough to constitute persecution, Kibinda has failed to establish
that this maltreatment was on account of a statutorily protected
ground. In fact, the ambiguous circumstances surrounding the
incident – “something” heavy was thrown in the darkened cell
at numerous individuals and hit Kibinda in the jaw – make it
difficult if not impossible to ascertain what motive there was for
the incident and whether or not Kibinda was even the intended
target.6
       2.     Future Persecution
        When an asylum request is based on a fear of future
persecution, a petitioner must show a well-founded subjective
fear, which is “supported by objective evidence that persecution
is a reasonable possibility.” Lin v. INS, 

, 244 (3d
Cir. 2001). The IJ found Kibinda’s fear of being persecuted


       6
         Counsel for Kibinda argues “it is reasonable to conclude
that the harm [Kibinda] suffered was motivated at least, in part,
by an actual or imputed ground establishing the nexus for a
finding of past persecution.” Reply Br. of Pet’r 7. They fail to
provide any objective evidence, direct or circumstantial,
however, of a link between the incident and Kibinda’s Cabindan
heritage. In INS v. Elias-Zacarias, 

, 481 (1992),
the Supreme Court explained that an asylum applicant is not
required to provide “direct proof of his persecutors’ motives” in
order to make out a claim of past persecution. 

However, because “the statute makes motive critical, [a
petitioner] must provide some evidence of it, direct or
circumstantial.” 

on his suspected Cabindan sympathies was objectively
unreasonable. This finding is supported by ample evidence in
the record that Kibinda had always been valued and trusted by
the Angolan army. The Angolan government selected Kibinda
for ten years of special schooling and officer training and
promoted him twice, to a final rank of lieutenant. In addition,
the record indicates that the Angolan army did nothing to
discipline Kibinda after discovering he had a FLEC card and
that he had helped a Cabindan cadet desert and in fact promoted
Kibinda afterwards.7 This is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” 

. Consequently, we
uphold the IJ’s finding that, based on this evidence, there is no
reasonable possibility of persecution if Kibinda is removed to
Angola.8


       7
         Although the IJ did not find that Kibinda’s overall
testimony merited an adverse credibility determination, he did
find it “implausible” that Kibinda was promoted by the Angolan
army even though the army suspected him to be a FLEC
sympathizer.
       8
        Kibinda also argues that he would be persecuted by
members of FLEC if removed to Angola. However, Kibinda did
not make any such claim before the IJ or BIA and cannot raise
that claim for the first time in a petition for review. See 8
U.S.C. § 1252(d)(1). This statutory requirement, intended to
ensure that the BIA has had a full opportunity to consider a
claim before it is submitted to a federal court, requires that a
petitioner “raise and exhaust his . . . remedies as to each claim

                               12
       Kibinda further argues he is entitled to asylum because
the punishment he will face as a deserter will be
disproportionately greater because he is a Cabindan.
Disproportionate punishment may constitute persecution in an
appropriate case. See Matter of A-G-, 19 I. & N. Dec. 502, 502
(BIA 1987) (“Persecution for failure to serve in the military may
be established in those rare cases where a disproportionately
severe punishment would result on account of one of the five
grounds enumerated in section 101(a)(42)(A) of the [INA].”).
This is an exception to the general rule that punishment for
desertion does not constitute persecution for purposes on an
asylum claim. See Lukwago v. Ashcroft, 

, 168 (“It
is generally accepted ‘that a sovereign nation enjoys the right to
enforce its laws of conscription, and that penalties for evasion
are not considered persecution.’”) (citation omitted).
       This record does not support application of the
disproportionate punishment exception to the general rule.
Kibinda’s fear of disproportionately severe punishment based on
his Cabindan heritage is belied by the same record evidence
cited by the IJ in finding Kibinda’s fear of persecution was
objectively unreasonable. Kibinda, despite his Cabindan
heritage, was singled out for special training and promotions
throughout his career, and was always treated by the Angolan
army as a valued and trusted member, right up until the time he
deserted the army and left for the United States. Absent any



or ground for relief if he . . . is to preserve the right of judicial
review of that claim.” Abdulrahman v. Ashcroft, 

,
594-95 (3d Cir. 2003).

                                 13
objective evidence to the contrary, we find substantial evidence
supports the conclusion that any punishment Kibinda may
receive upon removal can therefore only be attributed to his
status as an army deserter.
       Next, Kibinda argues he is entitled to asylum based on
his fear of being put in a position that would require him to
commit human rights abuses condemned by the international
community against his own people.9 See Islami v. Gonzales,

(2d Cir. 2005). This exception to the rule that
punishment for desertion is not persecution is relevant to both
past and future persecution. It is generally applicable as a means
of demonstrating past persecution to individuals who have
refused in the past to serve in an internationally condemned
military force and have fled to avoid participation. See 

(“[T]he past persecution consisted of the Serb-led military
engaging in ignominious activities, and Islami having to flee to
avoid participation in such acts which, in many instances were
perpetrated against his own besieged ethnic/religious
community.”). It is relevant to a fear of future persecution
insofar as courts have recognized that where conscription places
an individual in a position in which he might be forced to
commit acts that the international community condemns,
punishment for refusing to participate in such acts may amount
to persecution for purposes of an asylum claim. See Matter of



       9
        Kibinda presents this argument under the rubric of “past
persecution” in his brief, but as will become clear from our
discussion, we think it more appropriate to consider the claim as
an aspect of Kibinda’s prospective fears.

                               14
A-G-, 19 I&N Dec. at 506, aff’d sub nom., M.A. A26851062 v.
United States INS, 

(4th Cir. 1990). See also
Mekhoukh v. Ashcroft, 

, 126 (1st Cir. 2004);
Mojsilovic v. INS, 

, 747 (7th Cir. 1998).
        Kibinda, of course, has not refused to serve in the
military. In that regard, Kibinda’s case can be distinguished
from Islami, the primary case upon which he relies, in which the
petitioner “escaped from Kosovo . . . to avoid being conscripted
into the Yugoslavian military . . . 

. We might
concede that this is a distinction without a difference, insofar as
Kibinda alleges that he now refuses to serve in the military in
order to avoid being placed in a position in which he might be
forced to commit internationally condemned human rights
abuses against his own people. We might even concede for the
sake of argument that the Angolan campaign to suppress the
Cabindan separatist movement qualifies as an internationally
condemned campaign, although that question was not resolved
in the briefs or at oral argument.
         Even so, Kibinda has presented no objective evidence
that it is a reasonable possibility that he will be placed in such a
position or that he will be punished if he refuses to participate
in a campaign of atrocities against his own people. Kibinda
articulated only a speculative fear of having to fight his own
people, a fear that he had felt since he was first inducted into the
army, and one that never came to fruition in more than a decade
of service in the army.10 He failed to present any objective


       10
       Although we need not resolve the issue of whether the
Angolan campaign in Cabinda is an internationally condemned

                                15
evidence that he would be forced to participate in any human
rights abuses if returned to Angola. In fact, he testified that he
had seen combat only once, in the course of a sixteen day battle
against non-Cabindan rebel forces in an area outside of Cabinda.
Furthermore, he presented no objective evidence suggesting that
he would be punished for refusing to participate in any such
activities. “[I]t is the punishment for refusing to serve in an
internationally condemned military . . . that constitutes
persecution. Therefore, when an alien does not wish to be
associated with a military that engages in universally
condemned acts of violence, ‘the only relevant factor is the
likelihood that the alien will be punished.’” 

(quoting M.A. A26851062 v. INS, 

,
214-15 (4th Cir. 1998) (en banc)). As we do not find that the
record evidence is “so compelling that no reasonable fact finder
could fail to find the requisite fear of persecution,”

, we must uphold the
conclusion of the IJ on this issue.
       In summary, applying a deferential standard of review,
we find substantial evidence supports the IJ’s conclusion that
Kibinda had not established past persecution and did not have an
objectively well founded fear of persecution. He is therefore not




campaign, we note that, standing alone, a fear of having to fight
one’s own people may “reflect the unpleasant realities of civil
war” but does not necessarily “contemplate [] ethnic cleansing
and other atrocities.” Mojsilovic v. INS, 

, 747 (7th
Cir. 1998).

                               16
statutorily eligible for asylum.11 As Kibinda has failed to
establish a well-founded fear of persecution, he has failed to
meet the higher standard of demonstrating a “clear probability”
of persecution and thus is also not eligible for withholding of
removal. Balazoski v. INS, 

, 640 (3d Cir. 1991).
       B.     The Convention Against Torture
       Kibinda’s final claim is that he is eligible for withholding
of removal under the CAT. An applicant seeking relief under
the CAT must establish “that it is more likely than not that he or
she would be tortured if removed to the proposed country of
removal.” Sevoian v. Ashcroft, 

, 174-75 (3d Cir.
2002) (quoting 8 C.F.R. § 208.16(c)(2)). Although the standard


       11
          Because we uphold the IJ’s finding that Kibinda was
not entitled to asylum under the statute, we need not review the
IJ’s alternative ruling that Kibinda would nevertheless be
ineligible for asylum as an exercise of discretion because he
failed to show that he could not resettle in Brazil. However, we
note that under our precedent the Government carries the initial
burden of showing that an offer of “firm resettlement” exists,
Abdille v. Ashcroft, 

, 486 (3d Cir. 2001), and to the
extent the question of firm resettlement in this case turns on
Brazilian law, the Government was required to set forth
evidence of the substance of that law. 

Kibinda
declined to designate a country of removal and the IJ settled on
Angola as the country of removal. Nothing in this opinion
should be construed as barring removal or voluntary departure
to Brazil, should that become a possibility because Kibinda’s
wife is Brazilian.

                                17
for establishing a CAT claim is more stringent than the asylum
standard, it does not follow that a failure to meet the asylum
standard necessarily precludes a CAT claim. See Ghebrehiwot
v. Att’y Gen., 

, 358 (3d Cir. 2006) (finding IJ
committed legal error in holding that failure to meet the
evidentiary burden for asylum precluded relief under the CAT);
Amanfi v. Ashcroft, 

, 725 (3d Cir. 2003) (“A
petition for protection under the Convention Against Torture
differs significantly from petitions for asylum or withholding of
removal because the alien need not demonstrate that he will be
tortured on account of a particular belief or immutable
characteristic.”).
        However, the IJ in this case did not conclude that Kibinda
was ineligible for CAT relief simply because he had failed to
meet his asylum burden of proof. Rather, the IJ stated that
“[t]aking this [asylum] analysis into account, but also reviewing
all of the credible source materials in the record, the Court does
not find it more likely than not that respondent would be
tortured . . . .” In assessing the risk of torture, the IJ was
required to consider “all evidence relevant to the possibility of
future torture.” 8 C.F.R. § 208.16(c)(3) (2000). Various reports
were admitted into evidence at Kibinda’s immigration hearing,
including official country reports prepared by the U.S. State
Department, as well as reports from private organizations such
as Human Rights Watch and Amnesty International. The IJ
considered these various sources and concluded that Kibinda
was not likely to be tortured if returned to Angola. While these
sources do report some incidents of torture in Angola, the
evidentiary record as a whole does not “compel” a contrary
conclusion, 

n.1, that torture will

                               18
more likely than not occur if Kibinda is removed to Angola.
Thus, we must uphold the IJ’s finding with respect to Kibinda’s
CAT claim.
                             III.
      For the foregoing reasons, we conclude that substantial
evidence supports the BIA’s and IJ’s decisions to deny relief,
and we will accordingly deny the petition for review.




                              19