Nzambi v. Gonzales

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1225

BENASE LUFUA LUA NZAMBI,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals. (A96-097-211)

Argued: May 24, 2006 Decided: July 14, 2006

Before WILKINSON, TRAXLER, and GREGORY, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ARGUED: Jacqueline Emanga Ngole, Rockville, Maryland, for
Petitioner. Dennis Carl Barghaan, Jr., Assistant United States
Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Alexandria,
Virginia, for Respondent. ON BRIEF: Paul J. McNulty, United States
Attorney, Alexandria, Virginia, for Respondent.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

Benase Lufua Lua Nzambi petitions for review of a decision of

the Board of Immigration Appeals (“BIA”) denying her application

for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”). We deny the petition for review.

I.

Nzambi, a citizen of the Democratic Republic of the Congo

(“DRC”), entered the United States on October 22, 2001, as a

nonimmigrant visitor with permission to remain until April 21,

2002. She overstayed her visa, however, and thus became subject to

removal pursuant to section 237(a)(1)(B) of the Immigration and

Nationality Act (“INA”). See 8 U.S.C.A. § 1227(a)(1)(B) (West

2005). The Department of Homeland Security (“DHS”) charged Nzambi

with remaining in the United States longer than authorized, in

violation of INA § 237(a)(1)(B), and placed her in removal

proceedings. Nzambi conceded removability but sought asylum, see

8 U.S.C.A. § 1158(a)(1) (West 2005), withholding of removal, see 8

U.S.C.A. § 1231(b)(3) (West 2005), and relief under the Convention

Against Torture (“CAT”), see 8 C.F.R. § 208.16(c) (2006).

In her application for asylum and withholding of removal,

Nzambi asserted that the Congolese government had persecuted her

because of her political opinion and her religion. Nzambi asserted

that government agents arrested her on August 8, 2001, as a result

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of her attendance at a meeting of the Union for Democracy and

Social Progress (“UDSP”), a political party opposed to the regime

of Joseph Kabila. Nzambi’s alleged detention lasted for one week,

after which time she was released on the condition that she refrain

from participating in further UDSP functions.

Nzambi claimed she was arrested for a second time on September

13, 2001, approximately five weeks before she arrived in the United

States. According to Nzambi’s supporting affidavit, the arrest

occurred during a meeting at her church, the New Jerusalem, in

Kinshasa. Nzambi claims the government believed that she and

various other church members were using the New Jerusalem as a

front for UDSP activities. Nzambi was arrested along with her

pastor and a deacon of the church for “‘threatening the security of

the state’ . . . by distributing flyers that request the members of

the church to participate in a[n] uprising of the population.”

J.A. 46. Nzambi claimed to have suffered “cruel and degrading

treatment” during her six days of detention, including “tortures,

threats, [and] life threats.” J.A. 46. She was released “on

parole” with her fellow church members and was required to report

weekly to the police. Nzambi also claims she was forbidden to

participate in further political or religious meetings.

On October 21, 2001, several weeks after her release from

detention, Nzambi departed for the United States with a non-

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immigrant visa she obtained from the American Embassy in the DRC.1

In her supporting affidavit, Nzambi stated that she applied for a

United States visa “[b]ecause of the threats I had received from

the ANR agents before my arrest.” J.A. 47. Subsequently, at the

hearing before the immigration judge, Nzambi confirmed that she

obtained her visa and passport prior to either of her arrests. She

did not elaborate, however, on the nature or details of the alleged

pre-arrest threats.

Nzambi also claimed persecution based upon her membership in

a particular social group. Nzambi’s supporting affidavit explained

that her father, Dr. Lufwa, had been an active member of the UDSP

in the early 1990s. In September 1992, when Nzambi was eighteen

years old, Dr. Lufwa was allegedly killed by forces loyal to the

Mobutu regime, which was no longer in control of the government at

the time of the incidents identified by Nzambi in her application

for relief.2

1
According to Nzambi, she needed permission from government
security agents before she could leave the country. She claims she
was able to depart only because her uncle bribed airport officials.
2
The Mobutu regime held power in the DRC -- known then as
Zaire -- from 1965 to 1997. In 1997, Laurent-Desire Kabila wrested
control of the government from Mobutu, and the UDSP opposed
Kabila’s government as well. Kabila was assassinated in January
2001, but his son, Joseph Kabila, retained power and, according to
the State Department, continued the previous regime’s practice of
using “security forces” to arbitrarily detain political opponents,
including members of the UDSP. J.A. 17; see also Mulanga v.
Ashcroft, 349 F.3d 123, 127-29 (3rd Cir. 2003).

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 At the hearing before the immigration judge, Nzambi supplied

the following additional information. She testified that her

problems with the government stemmed from her status as a church

member and UDSP supporter. As church secretary, Nzambi created

letters and tracts for the church in which she suggested that the

government was not properly caring for DRC citizens. In support of

her claim, Nzambi submitted a church membership card.

Nzambi also elaborated upon her detention following her arrest

on September 13, 2001. She testified that she was beaten every day

and that, on her final day of detention, she was raped. Upon her

release, she received treatment for her back at a private residence

in order to avoid authorities. Nzambi also indicated that her

pastor remained in the DRC, where he was harassed and eventually

killed. At the hearing, Nzambi introduced a letter ostensibly from

her pastor verifying that she was a church member, claiming that

the church faced serious threats, and suggesting that Nzambi’s life

would be in danger if she returned to the DRC.

Nzambi submitted a generic UDSP membership card and a

certificate from a UDSP seminar. She also supplied a UDSP

membership card bearing her name and photograph and indicating she

contributed in 1999 and 2000.3 Additionally, Nzambi offered a

3
Although Nzambi testified that she became an official UDSP
member in 2000, she explained that she had taken part in many UDSP
activities and had supported the UDSP before that time. Hence, the
card reflected her contribution in 1999.

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letter from the Secretary General of the UDSP confirming her party

membership and indicating she had been arrested and had suffered

non-specific abuses at the hands of the government. Finally,

Nzambi submitted a letter from the President of the UDSP branch

located in the United States, stating that Nzambi was an active

member.

Nzambi further introduced a written statement from her uncle

indicating that Nzambi was involved with the UDSP and that she

traveled to the United States for her protection. The statement

indicated that Nzambi was arrested, but it failed to supply

specific details. Moreover, this statement did not mention the

assistance Nzambi’s uncle purportedly gave her to obtain a visa and

to leave the DRC. Additionally, Nzambi submitted documents

purporting to be a summons for her arrest, dated September 13,

2001, and an order authorizing her arrest, dated September 20,

2001. The order of authorization purports to have been issued

after her release from detention.

The immigration judge denied relief, concluding that Nzambi’s

testimony was not credible and that she did not provide sufficient

corroborative evidence of her claims. The immigration judge

explained that, although Nzambi claimed that she applied for an

American visa “[b]ecause of the threats I had received from the ANR

agents before my arrest,” J.A. 47, the actual “impetus that caused

[Nzambi] to leave her country were [the] two alleged arrests and

6
detention[s],” J.A. 54. First, the immigration judge noted that

there was no testimony or other corroborative evidence explaining

or verifying the threats that allegedly drove Nzambi to obtain the

visa. Second, it appears from the record that Nzambi received her

visa prior to her arrests but did not depart for the United States

until after the arrests. The immigration judge rejected as

implausible Nzambi’s explanation that an arrest warrant was issued

for her on the day of her release from prison and that she was able

to leave only after payment of a bribe. The judge noted that there

was no evidence suggesting Nzambi was in hiding to avoid the

execution of the warrant or why the warrant was not executed in the

six weeks between Nzambi’s release from prison and departure for

the United States. Also, the immigration judge noted that Nzambi

claimed that one of the conditions of her release was to report on

a regular basis to the authorities – had an arrest warrant been

outstanding, it seemed unlikely that Nzambi would avoid arrest when

reporting to authorities regularly. The statement from Nzambi’s

uncle was likewise not helpful to the immigration judge in that it

failed to corroborate the bribe or supply specific details about

her arrests or the pre-arrest threats she received. Finally, the

judge viewed various documents submitted by Nzambi “with

suspicion.” J.A. 56. In particular, the immigration judge found

that the summons and arrest warrant did not appear to be genuine.

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 Based on these findings, the immigration judge concluded that

Nzambi failed to satisfy the burden of proof required for asylum,

withholding of removal or protection under the CAT.

The BIA adopted and affirmed the denial of relief by the

immigration judge, finding that Nzambi failed to meet her burdens

of proof for all three forms of relief. The BIA found that the

decision of the immigration judge “properly addresses the material

inconsistencies in [Nzambi’s] testimony, the lack of reliable

corroborating evidence, and [Nzambi’s] failure to adequately

explain implausibilities in the record.” J.A. 68.

Nzambi petitions this court for review of the BIA’s denial of

relief, raising two primary challenges to the decision below.

First, Nzambi contends that the adverse credibility determination

by the immigration judge, which the BIA affirmed, was not supported

by substantial evidence. Second, Nzambi argues that the

immigration judge failed to conduct an independent and meaningful

analysis of her claim for relief under the CAT. We deny the

petition for review.

II.

Under the INA, the Attorney General and the Secretary of

Homeland Security are authorized to confer asylum on a refugee.

See 8 U.S.C.A. § 1158(b) (West 2005). To qualify as a refugee

pursuant to the INA, an alien must be unwilling or unable to return

8
to his native country “because of persecution or a well-founded

fear of persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.” 8

U.S.C.A. § 1101(a)(42)(A) (West 2005). The “well-founded fear of

persecution” standard includes both subjective and objective

components. The subjective component requires that the applicant

“present[] candid, credible, and sincere testimony demonstrating a

genuine fear of persecution.” Chen v. United States I.N.S., 195

F.3d 198, 201 (4th Cir. 1999) (internal quotation marks omitted).

The objective component requires “specific, concrete facts[] that

a reasonable person in like circumstances would fear persecution.”

Id. at 202. The applicant for asylum bears the burden of proving

refugee status. See 8 C.F.R. § 1208.13(a). Furthermore, even if

the applicant establishes refugee status, the decision to confer

asylum is still within the discretion of the attorney general. See

INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999). With respect to

withholding of removal, an applicant’s burden for establishing

eligibility is even more stringent than for asylum. To qualify for

withholding of removal, the applicant must establish a “clear

probability of persecution.” INS v. Stevic, 467 U.S. 407, 430

(1984) (internal quotation marks omitted). However, when an alien

establishes eligibility for withholding of removal, the grant of

relief is mandatory. See Aguirre-Aguirre, 526 U.S. at 420.

9
 The scope of review of a final order of removal denying asylum

is narrow. We may not disturb the BIA’s decision on asylum

eligibility unless it is “manifestly contrary to law and an abuse

of discretion.” 8 U.S.C.A. § 1252(b)(4)(D) (West 2005); see

Saldarriaga v. Gonzales, 402 F.3d 461, 465 (4th Cir. 2005), cert.

denied, 126 S. Ct. 1330 (2006). When the denial of asylum is based

on the conclusion that the applicant failed to meet her evidentiary

burden, then our review is for substantial evidence and we must

affirm the BIA’s decision unless the evidence is “so compelling

that no reasonable factfinder could fail to find” eligibility for

asylum. INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992). In

conducting this review, we must accord great deference to the

underlying factual findings of the BIA, which “are conclusive

unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C.A. § 1252(b)(4)(B). We likewise defer to

credibility findings that are supported by substantial evidence.

See Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 354 (4th Cir.

2006). Finally, a court may not “reverse a determination made by

a trier of fact with respect to the availability of corroborating

evidence . . . unless the court finds . . . that a reasonable trier

of fact is compelled to conclude that such corroborating evidence

is unavailable.” 8 U.S.C.A. § 1252(b)(4).

Nzambi argues that substantial evidence does not support the

immigration judge’s refusal to credit certain assertions Nzambi

10
made during the course of her asylum proceedings. For example,

Nzambi argues that it was error for the immigration judge to

suggest that Nzambi’s testimony about the purported reason she fled

her country was implausible and filled with discrepancies. Nzambi

notes that her testimony in no way contradicted her application for

asylum in which she claimed to have decided to flee based on

threats she received prior to her arrests and detention. Yet, the

immigration judge concluded that “[i]t appears from the record that

the impetus that caused [Nzambi] to leave her country were [the

arrests and detention].” J.A. 54. This reasoning, claims Nzambi,

was nothing more than the immigration judge’s personal speculation

about her motives which was unsupported by any testimony or other

evidence in the record.

Unfortunately for Nzambi, the immigration judge specifically

addressed the alleged pre-arrest threats as a basis for her leaving

the DRC, and he found that there was essentially no evidence

explaining these threats. See Chen, 195 F.3d at 202 (applicant

must offer “specific, concrete facts” in support of her claim)

(emphasis added). In light of the absence of evidence, we of

course cannot conclude that a reasonable factfinder would be

compelled to make a finding contrary to that of the immigration

judge.

Nzambi also contends that, contrary to the findings of the

immigration judge, there was nothing implausible about the date the

11
arrest warrant was issued or the failure of the authorities to

arrest Nzambi prior to her departure to the United States. She

argues that the immigration judge’s conclusion was rooted in

unsupported assumptions about the Congolese justice system. See

Camara v. Ashcroft, 378 F.3d 361, 369 (4th Cir. 2004) (explaining

that unsupported assumptions about foreign judicial procedure is

inadequate to justify an adverse credibility finding).

Nzambi’s argument is misplaced. The immigration judge was not

making assumptions about the justice system in the DRC; rather, he

was simply attempting to make sense of Nzambi’s claim that an

arrest warrant was issued for her on the same day that she was

released and told to report regularly. This testimony, coupled

with Nzambi’s testimony that authorities never attempted to arrest

her despite the weekly appearances, is sufficient to support the

immigration judge’s finding of implausibility.

Finally, Nzambi disagrees with the factual findings of the

immigration judge to the extent he found the corroborating evidence

to be insufficient. In particular, Nzambi argues that the judge

improperly discounted the written statement of her uncle because

there was nothing in it that was inconsistent with her claims.

However, the immigration judge was not bothered by the

discrepancies, but by the lack of corroborative details from a

relative who was heavily involved in Nzambi’s flight from the DRC.

Indeed, Nzambi indicated that her uncle knew about her arrests and

12
detention, helped her obtain her visa, and bribed airport officials

on her behalf. Nevertheless, the statement from her uncle only

addressed her relationship with the UDSP; it was silent as to the

facts of Nzambi’s arrests, detention, and flight from the DRC.

We also conclude that a reasonable trier of fact would not be

compelled to disagree with the immigration judge’s assessment that

the arrest warrant and related documents were not genuine and

authentic, based on a finding that the letterhead was a xeroxed

reproduction but the body of each document was in an “original

format.” J.A. 56.

In sum, we affirm the decision to deny relief, having

identified no evidence “so compelling that no reasonable factfinder

could fail to find” the required elements. Elias-Zacarias, 502

U.S. at 484.

III.

Nzambi also contends that the immigration judge failed to

conduct an independent, separate evaluation of the evidence and

testimony under the standards of the CAT, as required by Camara.

See 378 F.3d at 371. Relief from removal under the CAT requires

the applicant to show that it is more likely than not that he or

she would be tortured if removed to the proposed country of

removal. See 8 C.F.R. § 1208.16(c)(2). In this context, “torture”

is defined as follows:

13
 [A]ny act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a
person for such purposes as obtaining . . . information
or a confession, punishing him . . . for an act he . . .
committed or is suspected of having committed, or
intimidating or coercing him . . . , or for any reason
based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of . . .
a public official or other person acting in an official
capacity.

8 C.F.R. § 1208.18(a)(1). Unlike a claim for asylum, the applicant

need not establish the reason for the torture under the CAT or that

he has a well-founded fear of such torture. See Camara, 378 F.3d

at 371. Significantly, “[b]ecause there is no subjective component

for granting relief under the CAT, [an] adverse credibility

determination [used to reject an asylum claim] would not

necessarily defeat [a] CAT claim.” Id. Even if the immigration

judge determines that the applicant’s testimony is not credible, a

CAT claim may still succeed where the applicant has submitted

independent evidence from which a factfinder could conclude that

torture is more likely than not upon a return to the proposed

country of removal. See id. at 371-72.

We review the denial of a claim for relief under the CAT for

substantial evidence. See Rashiah v. Ashcroft, 388 F.3d 1126, 1131

(7th Cir. 2004). Relying on Camara, Nzambi contends that the

immigration judge did not consider all of the relevant evidence and

simply resolved her CAT claim based on the adverse credibility

determination used to deny her asylum claim. We cannot agree.

Although the immigration judge did not separately discuss all of

14
the evidence and testimony as relating to the asylum and CAT

claims, it is readily apparent that the judge applied the proper

standards for a CAT claim and did not reject the claim based solely

upon an adverse credibility finding with respect to Nzambi’s

testimony and supporting affidavit.

Indeed, the decision below touches on virtually all of the

documentary evidence supplied by Nzambi in support of all of her

claims. Such evidence included UDSP membership documents, the

arrest warrant and related documents, and the State Department

country report for the DRC in 2002 which indicated that the

government still targeted UDSP members for harsh treatment. Except

for the State Department’s Report, the immigration judge gave

specific and cogent reasons for rejecting each evidentiary item.

And the country report, in and of itself, does not satisfy the

proof required for relief under the CAT. See Zubeda v. Ashcroft,

333 F.3d 463, 478 (3rd Cir. 2003). Although the report is evidence

that UDSP party members were still at risk in 2002 for treatment

that could amount to torture, something more specific is needed

than party membership to show Nzambi is more likely than not to be

tortured were she to return to the DRC.

Accordingly, we conclude that sufficient independent

consideration was given to Nzambi’s CAT claim and that the

immigration judge did not deny the claim solely based on

credibility findings. We conclude that substantial evidence

15
supports the conclusion that Nzambi failed to satisfy the more

likely than not standard required for relief under the CAT.

IV.

For the reasons set forth above, we deny the petition for

review.

PETITION DENIED

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