Filed: Apr. 12, 2006
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit FILED REVISED APRIL 12, 2006 March 16, 2006 Charles R. Fulbruge III In the Clerk United States Court of Appeals for the Fifth Circuit _ m 04-60832 Summary Calendar _ MONIQUE T. MWEMBIE, Petitioner, VERSUS ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals _ Before SMITH, GARZA,* and PRADO, Monique Mwembie petitions for review of Circuit Judges. the denial by the Board of
Summary: United States Court of Appeals Fifth Circuit FILED REVISED APRIL 12, 2006 March 16, 2006 Charles R. Fulbruge III In the Clerk United States Court of Appeals for the Fifth Circuit _ m 04-60832 Summary Calendar _ MONIQUE T. MWEMBIE, Petitioner, VERSUS ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL, Respondent. _ Petition for Review of an Order of the Board of Immigration Appeals _ Before SMITH, GARZA,* and PRADO, Monique Mwembie petitions for review of Circuit Judges. the denial by the Board of I..
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United States Court of Appeals
Fifth Circuit
FILED
REVISED APRIL 12, 2006 March 16, 2006
Charles R. Fulbruge III
In the Clerk
United States Court of Appeals
for the Fifth Circuit
_________
m 04-60832
Summary Calendar
______________
MONIQUE T. MWEMBIE,
Petitioner,
VERSUS
ALBERTO GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
Before SMITH, GARZA,* and PRADO, Monique Mwembie petitions for review of
Circuit Judges. the denial by the Board of Immigration Ap-
peals (“BIA”) of her application for asylum,
JERRY E. SMITH, Circuit Judge: withholding of removal, and protection under
the Convention Against Torture (“CAT”). We
deny the petition.
*
Judge Garza concurs except for part II.
I. After that, Mwembie went outside her
Mwembie, a citizen of the Democratic Re- room and saw everyone running around. R.
public of Congo (“DRC”), fled that country in 178. Other colleagues in the hallway also
2001 after the assassination of the former pres- asked what was going on. R. 461, 467. She
ident, Laurent Kabila.1 Mwembie worked as a did not really know what to do, so she picked
secretary in the communications department at up the phone, but there was no dial tone. R.
the Marble Palace, R. 461, 467, where Kabila 178.
held various meetings.2 Mwembie’s job in-
volved editing and/ or creating press releases Around 1:30 p.m. the military ordered that
regarding the meetings, based on reports she each person return to his work station, ex-
received from others. R. 186-187. plaine that the Marble Palace was under siege,
and said no one was to leave the palace.
Her job went well until January 16, 2001, R. 461, 467. Mwembie did not know whether
when she heard gunshots, during which every- it was the police or the military that told them
one panicked. R. 461, 467. Soldiers and other not to leave the palace and that they had been
people were running everywhere. R. 461, 467. taken “hostage.”3 R. 179-80. Because of the
At first, Mwembie and others in her office hid large number of soldiers present, she thought
under their desks; she was shaking. R. 177. they consisted of not only the military guard of
The gunshots lasted about thirty minutes. the president working at the palace, but also
R. 177. some other soldiers from the outside. R. 149.
Mwembie remained at her desk till 10:00
p.m., when the military put everyone into a
1
The opinion of the immigration judge (“IJ”)
incorrectly calls the former president “Lavent
Cabila.”
2 3
The IJ’s opinion states that the Marble Palace During cross-examination, the Department of
was the “governmental palace” and that “all of the Homeland Security insisted that Mwembie and the
government’s business was conducted out of the others were not taken “hostage” but were only “de-
governmental palace.” This finding has no support tained for questioning,” because the police do not
in the record. Mwembie testified that the Marble take hostages. R. 79-80. The assumption that the
Palace was used for meetings; she never said it was police in a country with confirmed human rights
used to conduct “all” government activity. R. 141, abuses never take anyone “hostage” reflects not
143. only a lack of familiarity with foreign country
conditions, but also insensitivity to misunderstand-
Mwembie also testified that apparently around ings resulting from the use of translators. Iao v.
100 to 200 civilians were arrested at the palace and Gonzales, 400 F.3d 530, 533-34 (7th Cir. 2005)
that all civilians there were arrested. R. 181. If in- (describing these two problems and a few others as
deed the palace were the seat of the DRC “gov- “disturbing features” present in a large number of
ernment,” including all the ministries (e.g, finance, cases reviewed by the Seventh Circuit). If Mwem-
tourism, education, health, interior), from which bie used a word in the Lingala language akin to the
“all” government business was conducted, it would word “sequester” to describe the fact she was not
have provided office space for more than 100 to 200 allowed to leave the building, a closer translation is
civil servants. probably “taken hostage” rather than “detained.”
2
jeep,4 R. 147, where they were ordered to lie ing, Mwembie was told she had been arrested
down and close their eyes, R. 468. Someone because she was working at the palace on the
asked where they were being taken and why, day Kabila was killed. R. 161. There were
and in response the soldiers beat the person three judges who interrogated them. R. 161.
with a baton, causing his nose and mouth to The interrogators told her they had talked to
bleed; the soldiers then explained that everyone her friends, who had said she had given infor-
had to be quiet and did not have the right to ask mation to outsiders about when Kabila was in
questions. R. 468, 148. the palace and that she had enabled the out-
siders to enter the palace. R. 152. Mwembie
Mwembie and the others were taken to a big told them she had no involvement in Kabila’s
room, where they were kept for two days. death or knowledge of who had killed him.
R. 150. She explained that everyone working R. 469, 153. The women were instructed not
at the palace (approximately 100 or more peo- to talk to each other about the interrogations.
ple) were taken to that room. R. 181. On the R. 153.
third day, the women were separated from the
men, and all the women that worked in Mwem- The guards in charge of Mwembie’s cell
bie’s department were taken to one prison. beat and raped each of the women in the cell
R. 150. on a daily basis, each taking a turn while the
others held the woman down, or watched.
There, Mwembie and five other women from R. 155, 157-158, 160. Mwembie was one
her department were taken to a cell, R. 150, month pregnant at the time of her detention.
which she described as one-third the size of the R. 160. On one occasion when she was raped,
courtroom. R. 181. They were shown a rug on she suffered a miscarriage, causing her to lose
which they were to sleep and five or so soldiers blood and then consciousness. R. 157, 159.
that were supposed to watch over them. R. She was traumatized over this experience.
150. Mwembie did not know how many R. 159. The guards, however, took no mercy
women were in the prison and could not on her and continued to rape her even after the
estimate how many had been arrested on Janu- loss of her child. R. 160.
ary 16. R. 181. They were fed a single piece of
bread and tea mixed with milk once a day and One day, during an interrogation, Judge Gi-
were allowed to use an outdoor restroom once gal asked Mwembie about her parents and told
a day. R. 153. They received no medical her he knew her parents, sister, and aunt and
treatment. R. 159. that because he knew her family, he would
help her. R. 161-163. He asked for the help
Each woman was taken daily to be interro- of Chief Judge Mukumbi,5 who was his uncle,
gated. R. 151, 161-62. During her question-
5
The IJ’s opinion incorrectly calls Judge Mu-
4
In her opinion, the IJ also snaps at the use of kumbi three different names in the same paragraph:
the word “hostage.” R. 69. She incorrectly states, Mokumbe, Mukumbe, and Makumbe, R. 70, and
however, that Mwembie testified that she was taken refers to him incorrectly as Mukumbe thereafter.
hostage at about 10:00 p.m., when in fact Mwembie The correct name is Mukumbi, as shown in
testified that she was held hostage from 1:30 p.m to Mwembie’s testimony, R. 163, and the asylum
10:00 p.m. R. 147, 467. (continued...)
3
to organize Mwembie’s escape from prison. R. understand English.6 R. 166. After their
164. admission into the United States, they took a
bus to Raleigh, North Carolina, R. 166, where
Two days after the judges promised to help her companion left her to return to the Congo,
her, soldiers came for her in the middle of the R. 166.
night and took her out of her cell; it was well
known that when soldiers take someone in the Mwembie then contacted the only person
middle of the night, that person will be killed. she knew in the United States, Laurent Mata-
R. 164. They did not kill her, however, but put latala,7 who resided in San Antonio, Texas.
her into Mukumbi’s car trunk, whereupon he R. 166. Though Mwembie had never met
drove away with her in the trunk. R. 164. Matalatala, she knew of him through a friend,
and they had exchanged letters and had spoken
After thirty minutes, he stopped and made on the telephone. R. 169-170. After con-
her change her clothes, R. 164, then she rode tacting Matalatala, Mwembie took a bus to
inside the car to the border at Kinsuka, San Antonio, where he picked her up. R. 167.
R. 164-165. There, Mukumbi told her that it After hearing her story, Matalatala advised her
would be made to appear on paper that she had to apply for asylum and assisted her in filing
been killed in prison, so she was never to return her application on September 14, 2001.
to the DRC, R. 164, 173, 184, or to communi- R. 167, 176, 482.
cate with anyone, R. 473. Gigal, who knew her
family, indicated he would explain to her par- II.
ents that she had actually escaped the country. The IJ denied Mwembie’s claims, and the
R. 172-173. BIA affirmed without opinion. Therefore, the
proper focus of our review is the underlying
Mwembie then crossed the river and met a decision of the IJ. Garcia-Melendez v. Ash-
person who was waiting there with a car. croft, 351 F.3d 657, 660 (5th Cir. 2003). The
R. 165. She hid inside that person’s home in IJ devoted most of her opinion to credibility
Brazzaville for two weeks until he obtained a determinations and found that Mwembie is
passport for her to leave the country. R. 165. ineligible for asylum and withholding of re-
Mwembie and this person flew from Brazzaville moval and protection under CAT.
to Ethiopia, then to Italy, and finally, to New
York. R. 165-166.
6
The IJ inaccurately states that Mwembie en-
During the immigration inspection at the tered the United States based on a fraudulent pass-
airport in New York on March 17, 2001, port and visa from Belgium. Holders of Belgian
Mwembie’s companion presented the fraudu- passports do not need a “visa” to enter this
lent Belgian passport he had obtained for her, country, because they receive a visa-waiver. Thus,
Mwembie did not enter based on a fraudulent
and spoke on her behalf, because she did not
“visa,” but on a “visa waiver” obtained under the
false pretense that she was a Belgian citizen.
7
There are various spelling of Matalatala’s
name in the record. We use the name used in
5
(...continued) Mwembie’s original asylum application of Septem-
application. R. 472. ber 14, 2001, which Matalatala helped prepare.
4
We review this factual basis for substantial theless, the credibility issue because of the
evidence. Zhang v. Gonzales, 432 F.3d 339, poor quality of the IJ’s work and because the
343-44 (5th Cir. 2005). Under that standard, parties devote the bulk of their briefs to this
we will not disturb the IJ’s findings of fact question.
“unless we find not only that the evidence
supports a contrary conclusion, but that the Although “[w]e will not review decisions
evidence compels it.” Chun v. INS,
40 F.3d 76, turning purely on the [IJ’s] assessment of the
78 (5th Cir. 1994). The alien bears the burden alien petitioner’s credibility,” Chun, 40 F.3d at
of proving that “the evidence was so compel- 78 (quoting Mantell v. INS,
798 F.2d 124, 127
ling that no reasonable factfinder could con- (5th Cir. 1986), we have not read this to mean
clude against it.”
Id. that credibility determinations that are unsup-
ported by the record and are based on pure
For asylum, withholding of removal, and speculation or conjecture will be upheld.
CAT claims, “[t]he testimony of the applicant, Rather, our caselaw interprets this as meaning
if credible, may be sufficient to sustain the bur- that where the judge’s credibility determina-
den of proof without corroboration.”8 We can- tions are supported by the record, we will
not second-guess the BIA or IJ by substituting affirm them even if we may have reached a
our credibility judgment for that of the factfind- different conclusion, because we will reverse
er. Chun, 40 F.3d at 78. only if the record “compels” a different con-
clusion.10 In fact, this is the standard the De
Even given this highly deferential standard,
however, the IJ’s conclusion that Mwembie did 9
not meet her burden of persuasion on the like- (...continued)
an alien must show “a subjective fear of
lihood of future persecution if returned to DRC
persecution, and that fear must be objectively
is not supported by substantial evidence. Al-
reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d
though we ultimately sustain the IJ’s decision 442, 445 (5th Cir. 2001).
by denying the petition for review, it is not be-
cause Mwembie has not met her burden of A claim for withholding of removal, meanwhile,
proof that she will be persecuted, but because does not require proof of subjective fear, Zhang,
she has not satisfied her burden to show that 432 F.3d at 344, but it does require that the alien
she will be persecuted “on account” of one the prove a “clear probability” of future persecution,
five enumerated reasons.9 We address, none IRS v. Stevic,
467 U.S. 407, 413 (1984):
Mwembie must show it is more likely than not that
“[her] life or freedom would be threatened . . .
8
8 C.F.R. §§ 208.13(a) (asylum); 208.16(b) because of [her] race, religion, nationality, mem-
(withholding of removal); 208.16(c)(2) (CAT). bership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A).
9
To be eligible for asylum, an alien must be
10
“unable or unwilling to return to . . . [his home] See, e.g., Lopez de Jesus v. INS, 312 F.3d
country because of persecution or a well-founded 155, 161 (5th Cir. 2002) (“[A] credibility deter-
fear of persecution on account of race, religion, mination may not be overturned unless the record
nationality, membership in a particular social group, compels it.”); see also Kurji v. Gonzales, 140 Fed.
or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Appx. 549, 550 (5th Cir. 2005) (per curiam)
To demonstrate a well-founded fear of persecution, (“[T]he record does not compel a credibility deter-
(continued...) (continued...)
5
partment of Justice cites in its brief, though it Congo Brazzaville. During her short two-
mistakenly labels Third Circuit precedent as week stay in Brazzaville, she was not allowed
coming from this court: to leave the house. So, there is nothing in the
record that would contradict her testimony
Further, although adverse credibility deter- that she did not and could not say good-bye to
minations cannot be based on speculation or her family; in fact, the record compels the
conjecture, such findings will be afforded opposite conclusion.
substantial deference where it [sic] is
grounded in evidence in the record and The IJ also found that Mwembie’s testi-
where the [IJ] provides specific cogent rea- mony was vague because she gave few details
sons for her determination. Abdulrahman v. of her life in prison “other than consistently
Ashcroft, 330 F.3d 587, 597 (5th [sic] Cir. stating that she was raped daily and interro-
2003). gated.” To the contrary, Mwembie described
prison life in detail. She explained what type
Many of the key findings by the IJ are not of food she received, how often, how many
supported by the record and are based on pure times she was allowed to use a restroom, how
speculation or conjecture. For example, the IJ many cellmates she had, and how big her cell
found it implausible that Mwembie fled her was. She gave the number and names of the
country without saying goodbye to her family. judges and the number of soldiers guarding her
To reach this finding, however, the IJ should cell and described in detail the episode leading
have had more information. to her miscarriage.
There is nothing in the record to suggest that In discrediting Mwembie’s testimony as
aliens fleeing from prison to a different country vague, the IJ pointed out that Mwembie did
usually go home to say good-bye. In fact, the not state the date on which she was released
BIA has rejected such a speculation and has from prison. The record compels a different
found that it is not unreasonable for an asylum conclusion, however. Mwembie testified that
applicant to flee his country, leaving family she fled to Congo Brazzaville on the night of
behind, where returning to his or her family her escape. She also wrote in her asylum ap-
members would put his life in danger. In Re plication that she fled her native county on
B-, 21 I&N Dec. 66 (BIA 1995). March 1, 2001. R. 475. Accordingly, in light
of the fact that she escaped from prison on the
Mwembie did not have control of where day she fled to Brazzaville, she must have es-
Mukumbi was driving while she was in the caped on March 1 as well. This date is consis-
trunk of his car. Further, Mwembie escaped to tent with her account that she spent six weeks
a different country during the night of her es- in prison (having been imprisoned on January
cape from prison: She fled from the DRC to 16, 2001), that she spend about two weeks in
Brazzaville, and that she arrived in the United
States on March 17.
10
(...continued)
mination contrary to that of the IJ.”); In re A-S-, 21 The IJ also found that Mwembie’s testi-
I&N Dec. 1106 (BIA 1998) (explaining that the mony that she was raped daily is implausible
BIA generally defers to and adopts the IJ’s because “the brutality that [she] has described
credibility determination if supported by the record).
6
is simply not comprehensible.” R. 77. This is many women were in the prison, she never tes-
error. tified that there were no other women there.
She merely had no information with respect to
That brutality is extraordinary does not that. The IJ’s finding is not supported by sub-
render it implausible. Under the IJ’s logic, stantial evidence in the record, which compels
Jews fleeing Nazi Germany and describing the a contrary conclusion.
concentration camp atrocities would have been
denied asylum because the brutality they de- The IJ also found it implausible that two
scribed would be “incomprehensible.” judges helped Mwembie escape when it was in
their power to release her. But, there is no in-
Absent more information about Congolese dication in the record that the “decision to re-
guards watching prisoners for the military tri- lease her was in their hands.” There is no hint
bunals, the record does not support a conclu- that any suspect was released before trial, and
sion that the brutality was incomprehensible. In the verdict was rendered almost two years
fact, the record shows that several defendants after January 16, 2001. R. 287. Indeed, the
in the Kabila trial were tortured in prison. fact that as many as fifty people were found
R.431. The record also does not contain in- not guilty suggests that no one was released
formation that would challenge the claim that prior to trial. R.287.
the soldiers were brutal. To the contrary, the
record shows that the Congolese guards ap- Therefore, if indeed one of the judges was
parently told Mwembie that she deserved to be a friend of Mwembie’s parents, it is plausible
raped and die because she was a criminal. that he would have helped her get out of pri-
R. 470-471. This justification for brutality is son before trial, given that prison meant daily
far from incomprehensible. rape and a slice of bread per day for several
more months. Further, we have no informa-
Thus, given the justification the guards of- tion on whether the interrogating judges would
fered for their brutality, there is no reason to have been the same judges presiding at trial.
think they aspired to be “comprehensible” per- If they were not the same, they presumably
secutors who rape less than daily. Also, be- could not have helped release her.11
cause the record indicates that Mwembie was
not allowed to have a lawyer or to see her The IJ also found it implausible that the
family, there was no apparent external pressure judges would make it appear on paper that
that would keep the soldiers in check. Mwembie had been killed, but on the other
hand telling her family she had escaped.
The IJ also found it implausible that five Again, this is not a rational reason for which
guards were guarding six female prisoners. any “reasonable factfinder” could ever find a
That finding would be defensible if indeed there
were any evidence that the guards were
guarding only the six female prisoners in 11
Although the Department of Justice points out
Mwembie’s cell. There is, however, no evi- that it “strains credulity” that a judge would risk
dence that her cell was the only one in the pris- his career for Mwembie, here the risk of saving the
on or that the guards did not guard any other innocent daughter of a friend or neighbor from
cells. Although Mwembie could not say how daily rape and possible death may have been
deemed worth taking.
7
testimony implausible. There is absolutely no pels a different conclusion.
inconsistency between the two actions: The
judges, who are friends of Mwembie’s family, The IJ took issue with Mwembie’s testimo-
wanted the DRC government to think she was ny that she memorized and remembered Matal-
dead so it would not harass her family after her atala’s phone number; the IJ thought that no
escape, and the judges also wanted her family one who suffered daily rape for six weeks
to know she in fact was safe. There is nothing could remember a phone number. To make
in the record to suggest otherwise. that decision, however, the IJ would need to
know several facts not in the record: How
The IJ also found implausible Mwembie’s often did Mwembie call Matalatala before her
account of being detained for more than two imprisonment; how good was Mwembie’s
days, because the IJ thought that the record memory generally; and how is long-term
shows that the only women who were detained memory affected by six weeks of prison and
were married to other suspects. This statement rape? Though Mwembie indicated she lost
misreads the record. consciousness after one of the rapes, there is
no indication that the rapes affected anything
The newspaper articles and reports state that other than her short-term memory.
“at least three women were arrested and tried
for and on behalf of their husbands, R. 287; In fact, it is quite plausible that Mwembie
“the suspects included 10 civilians, among remembered Matalatala’s phone number, be-
which five women,” R. 292; “a number of the cause she testified that she did not call him
female defendants may be . . . detained simply from her mobile phone but from a phone
because they were related or married to sus- booth, where the cost was one dollar a minute.
pects still at large,” R. 302; and “Kabila’s for- Because she had to dial the full number every
mer guards and aides, as well as the wives and time, it is more likely that she would have
girlfriends of suspects are charged with a role in memorized it.
the assassination, R. 434. Therefore, the fact
that “at least three women” were arrested on Therefore, the IJ’s reasoning why Mwem-
behalf of their husbands does not indicate that bie could not have remembered the phone
only those women, or only those types of wom- number is not only not supported by the re-
en, were arrested; more information is needed cord, but also not “rational.” Although we
to draw that inference. agree with the premise of Dia v. Ashcroft, 353
F.3d 228, 362 (3d Cir. 2003) (en banc) (Alito,
Similarly, the record shows that “a number J., dissenting), that an IJ can base some of his
of female” defendants were arrested on behalf determinations on his understanding of general
of their husbands, not that “all” women were. human behavior, such understanding must be
Also, the record indicates that not only the “rational.” Here, the IJ’s finding is not ra-
wives of suspects, but also a number of Kabila’s tional, and the record compels a different re-
“guards and aides” were arrested: As an sult. See INS v. Elias-Zacarias,
502 U.S. 478,
employee at the Marble Palace, Mwembie can 481-84 (1992).
be considered to have been a presidential aide.
Therefore, there is nothing in the record that What is most troubling about the IJ’s opin-
supports the IJ’s finding, and the record com- ion, is not, however, her incorrect and irratio-
8
nal assumptions about human behavior and Also, an item of identification that Mwem-
especially the behavior of people from foreign bie submitted with her application indicates,
cultures, such as her assumptions about a vic- albeit in French, that during 2000-2001, she
tim’s ability to remember phone numbers, about was a first-year student in molecular biology at
all aliens’ behavior in saying good-bye to their the University of Medicine. R. 483. She did
families before fleeing, or about the “in- not mention this fact; rather, her application
comprehensible” brutality of the persecutors. It seems to indicate she never attended post-sec-
is rather the IJ’s lack of familiarity with the ondary education other than a computer
record and her inability to comprehend it, as course. R. 454. According to the educational
demonstrated by her misspelling of the presi- history she provided in her asylum application,
dent’s name, her three different misspellings of Mwembie only attended high school and a
Mukumbi in the same paragraph, and her computer course and graduated from the com-
fabrication of facts not in the record (such as puter course in 1997. R. 454. Also according
her statements that “all” of the government’s to the record, Mwembie was a mother of
business was conducted out of the Marble three, and had her first two children when she
Palace and that only women married or related was 15 in 1988 and her third child when she
to male suspects were detained in the Kabila was 22. Thus, apparently she was able work
investigation). as a communications secretary, be a university
student in a challenging subject such as
There are other serious flaws in the IJ’s an- molecular biology, and be the mother of three,
alysis. For example, in her asylum application all at the same time, during 2000-01. Though
Mwembie indicated that it was one of the sol- this could be plausible if, for instance, she at-
diers who took her to a judge to be interrogat- tended classes at night, the IJ should have
ed, who asked her who her parents were and explored this issue.
told her he knew her family because they were
neighbors in Lubumbushi, Katanga. R. 471- III.
472. Mwembie then explained that two days Despite these enormous shortcomings in
later that soldier, who is now called the “Com- the IJ’s performance, we sustain her decision
mander,” took her to the judge and said she by denying the petition for review because she
was the daughter of Mwembie and that Mu- also found that Mwembie was not persecuted
kumbi told the Commander he would help her. on “account of any of the five reasons enumer-
R. 472. Then, a few days later, Mwembie es- ated under the Act.” Although the IJ did not
caped in the trunk of Mukumbie’s car with the further elaborate, this was the correct way to
help of Mukumbie and the Commander, now dispose of the claims, which both require that
called “Commander Mukumbi.” R. 472. Mwembie have been persecuted on account of
“race, religion, nationality, membership in a
Mwembie testified, however, that it was Gi- particular social group, or political opinion.”
gal, at interrogation, not one of the soldiers,
who asked who her parents are. He knew her In her various filings, Mwembie asserted
parents, too, but from Russia, not from Lubum- that she was persecuted because of her “im-
bashi. Also, it was Mukumbi, not Commander puted political opinion” and her “membership
Mukumbi, who helped her escape. These in- in a social group.” The IJ, however, found
consistences deserved further probing. that she was detained because of “legitimate
9
investigation” into the assassination, R. 79, and show that he was a member of a group of per-
this finding is supported by substantial sons that share a common immutable
evidence. characteristic that they either cannot change or
should not be required to change because it is
In other words, even if Mwembie’s account “fundamental to their individual identities or
is believable, she claims, in her asylum applica- consciences.”13
tion and testimony, that she was imprisoned
because she was in the building at the time of Mwembie, like the taxi drivers in Acosta,
the assassination. Even if the investigators be- can change her employment and thus her stat-
lieved she was involved in a political conspiracy us of “government employee.” Because she
to overturn the Kabila regime, they were can change her employment, which is not fun-
investigating her solely because she was a damental to her identity or conscience, she
criminal suspect in a murder, not because she does not belong to a “social group” of govern-
was against the Kabila regime. Therefore, she ment employees working at the Marble Palace.
was ineligible for asylum or withholding of In any event, the record shows that she was
removal.12 not imprisoned “because” she belonged in the
group of government employees working at
Mwembie also claims she was persecuted on the Marble Palace, but “because” she was a
account of membership in a particular social criminal suspect.
group, “government employees.” R. 25. Even
if “government employees” were found to be a IV.
cognizable social group, there is no evidence We also deny the petition for review on the
supporting the claim that all DRC government CAT claim. To secure relief under CAT, an
employees were targeted or persecuted. To alien does not need to show persecution based
the contrary, it appears that only about one on one of the five protected characteristics for
hundred government employees at the Marble claims of asylum and withholding of removal.
Palace, not all government employees in Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
general, were singled out for “persecution.” 2002). Thus, if Mwembie claims she will be
raped in prison or sentenced to death14 because
Even if the group were defined to be “all she was a criminal suspect in Kabila’s assassi-
government employees at the Marble Palace,” nation, she might have a torture claim even if
this would not meet the definition of “social
group.” To establish that he is a member of a
“particular social group,” an applicant must
13
Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
352-53 (5th Cir. 2002) (citing Matter of Acosta,
19 I&N Dec. 211, 233, 1985 WL 56042 (BIA
12
Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir. 1994) 1985) (rejecting claimed social group of Salvador-
(finding that police interrogated petitioner because an taxi cooperative because characteristics that
they were seeking information relating to a terrorist defined taxi drivers are not immutable)).
incident, not because he was Kurdish or because he
14
wanted discrimination against Kurds to end); Lwin We do not address the issue of whether a rape
v. INS, 144 F.3d 505, 509 (7th Cir.1998); Dinu v. or a killing of someone in custody by a government
Ashcroft,
372 F.3d 1041 (9th Cir.2004); Shardar v. official who was holding the person in custody
Ashcroft,
382 F.3d 318, 323-24 (3d Cir. 2004). constitutes torture.
10
she does not have an asylum claim.15 tured because she would be viewed as a “gov-
ernment opponent due to the timing and cir-
Under CAT, the alien must meet the “higher cumstances under which she left her country.”
bar” of proving it is more likely than not that he A “reasonable possibility” standard is less than
will be tortured if returned to his home country. a “more likely than not” standard. Mwembie
Id.16 To meet this burden, he may produce does not further elaborate on the torture issue
evidence of past torture, an inability to relocate and does not brief the CAT claim at all or cite
to a safer part of the country, human rights legal precedent. Therefore, because she is un-
abuses committed within the country, and any able to point out on appeal why it is more like-
other relevant information. See 8 C.F.R. § ly than not that she will be tortured, she has
208.16(c)(3). waived her CAT claim.17
Mwembie’s appellate brief only claims that The petition for review is DENIED.
there is a “reasonable possibility,” not that it is
“more likely than not,” that she would be tor-
15
The viability of a torture claim under this
circumstances would depend, however, on whether
the “non-political crime” exception applies, because
according to her story, Mwembie is a suspect in a
murder case, and it may not be prudent for
American, rather than Congolese, courts to de-
termine her guilt or innocence, absent proof that she
will be found guilty regardless of her actual guilt or
innocence. We do not resolve this question, because
Mwembie’s torture claim fails for a different reason.
16
The relevant regulation defines torture as
any act by which severe pain or suffering,
whether physical or mental, is intentionally in-
flicted on a person for such purposes as obtain-
ing from him or her or a third person information
or a confession, punishing him or her for an act
he or she or a third person has committed or is
suspected of having committed, or intimidating
or coercing him or her or a third person, or for
any reason based on discrimination of any kind,
17
when such pain or suffering is inflicted by or at See, e.g., Calderon-Ontiveros v. INS, 809
the instigation of or with the consent or F.2d 1050, 1052 (5th Cir. 1986); see also Mediou-
acquiescence of a public official or other person ni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002) (“As
acting in an official capacity. [the petitioner] did not brief his claim under the
Convention Against Torture on appeal, we consider
8 C.F.R. § 208.18(a)(1) (2000). the argument waived.”).
11
