12-4436
Lumanikio v. Lynch
                                                                                BIA
                                                                         Connelly, IJ
                                                                        A201 219 057



                       UNITED STATES COURT OF APPEALS
                           FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
 ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL
 RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING
 A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER
 THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY
 ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
 REPRESENTED BY COUNSEL.

          At a stated term of the United States Court of
 Appeals for the Second Circuit, held at the Thurgood Marshall
 United States Courthouse, 40 Foley Square, in the City of New
 York, on the 4th day of March, two thousand sixteen.

 PRESENT: REENA RAGGI,
          RICHARD C. WESLEY,
          PETER W. HALL,
               Circuit Judges.
 _______________________________________

 AMBROISE NGAYINOKO LUMANIKIO, AKA DEDRI
 MANUEL LANDO,

                     Petitioner,

                     v.                                 12-4436
                                                        NAC
 LORETTA E. LYNCH, UNITED STATES
 ATTORNEY GENERAL,

          Respondent.
 _______________________________________

 FOR PETITIONER:                   Jose Perez, Esq., Syracuse,
                                   New York.
FOR RESPONDENT:         Stuart F. Delery, Assistant Attorney
                        General; James E. Grimes, Senior
                        Litigation Counsel; Virginia Lum,
                        Trial Attorney, Office of
                        Immigration Litigation, United
                        States Department of Justice,
                        Washington, D.C.

    UPON DUE CONSIDERATION of this petition for review of

a Board of Immigration Appeals (“BIA”) decision, it is

hereby ORDERED, ADJUDGED, AND DECREED that the petition for

review is GRANTED in part and DENIED in part and remanded

for further proceedings.

    Petitioner Ambroise Ngayinoko Lumanikio, a native and

citizen of the Democratic Republic of Congo, seeks review

of an October 12, 2012, decision of the BIA affirming the

April 26, 2012, decision of an Immigration Judge (“IJ”),

which denied his application for asylum, withholding of

removal, and relief under the Convention Against Torture

(“CAT”).   In re Ambroise Ngayinoko Lumanikio, No. A201 219

057 (B.I.A. Oct. 12, 2012), aff’g No. A201 219 057 (Immig.

Ct. Batavia Apr. 26, 2012).   We assume the parties’

familiarity with the underlying facts and procedural

history in this case.

    Under the circumstances of this case, we have reviewed

the IJ’s decision as modified by the BIA.   See Xue Hong

Yang v. U.S. Dep’t of Justice, 

, 522 (2d Cir.

                              2
2005).1    The applicable standards of review are well

established.    See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v.

Holder, 

, 513 (2d Cir. 2009).

    To establish eligibility for asylum or withholding of

removal, an applicant must show persecution, or fear of

persecution, on account of race, religion, nationality,

membership in a particular social group, or political

opinion.    8 U.S.C. §§ 1101(a)(42); 1158(b)(1)(B)(i);

1231(b)(3).    Under the REAL ID Act, the protected ground

must be “one central reason” for the persecution.    8 U.S.C.

1158(b)(1)(B)(i); In re C-T-L-, 25 I. & N. Dec. 341 (BIA

2010) (applying REAL ID Act to withholding of removal).

    The agency did not err in finding that Lumanikio

failed to establish a nexus between his past persecution or

well-founded fear of future persecution and a statutorily

protected ground.    In his asylum application and testimony,

Lumanikio stated that he was harmed because he refused to

marry an army colonel’s daughter, a motivation not


      1
       While Lumanikio also challenges the IJ’s adverse
 credibility determination, the BIA assumed, without
 deciding, that Lumanikio was credible in concluding that
 the IJ’s decision should be affirmed . See Yan Chen v.
 Gonzales, 

, 271 (2d Cir. 2005). We similarly
 assume credibility but, insofar as we remand, we do not
 foreclose the BIA from considering that issue further.
                               3
encompassed by one of the statutory asylum grounds.     Cf.

Melgar de Torres v. Reno, 

, 313 (2d Cir. 1999)

(holding that petitioner failed to show persecution on

account of a protected ground when there was “no evidence

to suggest that the rape [by government soldiers] was

anything but an act of random violence”). See also Sampotan

v. Mukasey, 

, 71-72 (1st Cir. 2008) (no

persecution on account of protected ground when harm

resulted from “personal grudge”); Marquez v. INS, 

, 380 (7th Cir. 1997) (“A personal dispute, no matter

how nasty, cannot support an alien’s claim for asylum.”).

    Lumanikio argues that the agency failed to consider

that he was harmed on account of an imputed political

opinion.     The BIA implicitly rejected that argument when it

found that Lumanikio had not shown that harm arose out of

anything other than a personal dispute.     We identify no

error.     The only reference to any political motivation for

the alleged harm was Lumanikio’s brief assertion in his

asylum application that the colonel “was not happy at all”

about Lumanikio’s membership in another political party.

Compared to his extensive testimony that he was targeted

for refusing to marry the colonel’s daughter, this


                               4
statement does not show that his political opinion was one

central reason for the harm.       See 8 U.S.C.

§ 1158(b)(1)(B)(i).

       Lumanikio’s argument that he was persecuted on account

of membership in a particular social group of employees of

the colonel is unexhausted because he failed to raise it

before the BIA.     See Foster v. INS, 

, 78 (2d

Cir. 2004) (holding that petitioners are required to raise

specific issues with the BIA in order to preserve them for

appellate review).

       With respect to CAT relief, however, the agency did

not adequately consider the issue of government

acquiescence.     A CAT applicant must show that it is more

likely than not that he will be tortured “by or at the

instigation of or with the consent or acquiescence of a

public official or other person acting in an official

capacity.”    8 C.F.R. § 1208.18(a)(1); De la Rosa v. Holder,

, 109 (2d Cir. 2010).      Official acquiescence to

torture requires that government officials “know of or

remain willfully blind to an act [of torture] and

thereafter breach their legal responsibility to prevent

it.”     Khouzam v. Ashcroft, 

, 168 (2d Cir.

2004).
                               5
    Given the private nature of the dispute here, the

agency reasonably concluded that the colonel was not acting

in his official capacity as a member of the military.

Acquiescence, however, may be shown even when officials act

in their “purely private capacities,” provided that the

torture is of a “routine nature.”     

(internal quotation marks omitted).    Neither the IJ nor the

BIA appear to have considered that possibility in light of

the U.S. Department of State’s 2010 Country Report on human

rights practices in the Democratic Republic of Congo, which

indicates that, at the time in question, government

officials in the Congo engaged in acts constituting

torture, often with impunity, and often for seemingly

private reasons.   For example, the report states that there

“were several occasions during the year when members of

state security forces arbitrarily and summarily killed

civilians . . . often for failing to surrender their

possessions, submit to rape, or perform personal services.”

Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of

State, 2010 Human Rights Report: Democratic Republic of the

Congo 3 (2011), http://www.state.gov/documents/

organization/160453.pdf.   At the same time, there “were

very few reports of government authorities taking action

                             6
against members of state security forces.”   

Instead, the report suggests that even the most serious

incidents of torture, rape, and abuse went unpunished or

even uninvestigated.   “[M]echanisms available to

investigate abuses by state security forces . . . remained

weak and ineffective, particularly for addressing

misconduct by mid- and high-ranking officials.”     

    We express no view as to whether these reported

incidents of torture and other abuses by government

officials in the Congo will, upon further review, support a

finding that the action taken against petitioner here was

routine and, thus, indicative of official acquiescence.     We

conclude only that the agency could not reasonably decide

the issue of acquiescence without considering such

evidence.   See Poradisova v. Gonzales, 

, 77 (2d

Cir. 2005) (“[W]e require a certain minimum level of

analysis . . . if judicial review is to be meaningful.”).

Accordingly, we remand for it to do so.




                             7
    For the foregoing reasons, the petition for review is

GRANTED in part and DENIED in part and the case is remanded

for further proceedings consistent with this order.



                  FOR THE COURT:
                  Catherine O’Hagan Wolfe, Clerk of Court




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