United States Court of Appeals
For the First Circuit
No. 08-2391
REBECCA MATOVU,
Petitioner,
v.
ERIC H. HOLDER, JR.,* ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Lipez and Howard, Circuit Judges
William P. Joyce, on brief for petitioner.
Hillel R. Smith, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil
Division, and Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, on brief for the respondent.
August 20, 2009
*
Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Eric H. Holder, Jr. has been substituted for former Attorney
General Michael B. Mukasey as the respondent.
LYNCH, Chief Judge. Rebecca Matovu, a native and citizen
of Uganda, seeks review of a final order of the Board of
Immigration Appeals ("BIA") denying her application for asylum,
withholding of removal, and protection under the Convention Against
Torture ("CAT"). We deny Matovu's petition.
I.
Matovu entered the United States as a visitor on July 24,
1997, petitioned for F-1 student status, and obtained authorization
to remain in the United States until October 1, 2002. On October
7, 2002, Matovu filed an application for asylum. On July 26, 2004,
the Department of Homeland Security denied her request and referred
her application to an Immigration Judge ("IJ") to initiate removal
proceedings. Matovu conceded removability and sought asylum,
withholding of removal, and protection under the CAT. In the
alternative, Matovu requested voluntary departure.
Matovu testified in support of her application in two
separate hearings on August 22, 2005 and March 29, 2006. She
claimed that her father had been killed in 1982, during Uganda's
civil war, by rebels now in control of the Ugandan government.
Following her father's death, Matovu relocated with her brother to
Nairobi, Kenya, where she resided until returning to Uganda in
1989. Between 1994 and 1997, she visited Kenya multiple times, as
well as India and Tanzania, always returning to Uganda. In 1997,
Matovu left Uganda and traveled to the United States. Her two
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children remained in Uganda with her mother, where, Matovu
testified, they were attending government-run boarding school.
Matovu further testified that after her arrival in the
United States the Ugandan government obtained information about her
brother's whereabouts from his briefcase, which was stolen from him
when he visited Uganda in early 2002. Over the months following
the theft, secret agents approached her mother several times,
seeking additional information about her brother. Matovu
maintained that these Ugandan government operatives were
responsible for the fatal shooting of her brother in May 2002 in
Nairobi. She attributed the attack to the Ugandan government's
fear that her brother might "point a finger at them" for past
atrocities. Matovu added that a friend had reported that secret
agents had sought information about Matovu's own whereabouts in the
months prior to her testimony. Finally, she expressed fear at the
prospect of returning to Uganda, in light of the Ugandan
government's persistent interest in her family.1
In an oral decision on March 29, 2006, the IJ held that
Matovu had failed to establish eligibility for asylum. The IJ
first determined that Matovu's testimony was not credible, noting
1
The retirement of the IJ who had presided over the first
proceeding necessitated a complete rehearing before a second IJ.
The rehearing provided the basis for the BIA's opinion, and the
petitioner has not asserted any prejudice arising from the second
proceeding in this appeal. We limit our discussion of Matovu's
testimony to the hearing held on March 29, 2006.
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that the "whole of [her] claim . . .is marred with inconsistencies
and also with vague statements." The IJ cited "major
discrepancies" between Matovu's asylum assessment memorandum and
her testimony. The IJ noted, for instance, that Matovu had
previously indicated that her brother had been killed by
"unidentified gunmen" as a result of his efforts "to reclaim lost
family property." The IJ also found she had failed to produce
corroborative evidence with which to resolve this and other
inconsistencies.
The IJ concluded that Matovu had failed to demonstrate
past persecution in Uganda, observing in particular that, even on
her own testimony, "nothing ever happened" to her during her years
of residence in that country.
Turning to future persecution, the IJ held that Matovu
had failed to show any nexus between the deaths of her brother and
her father or otherwise corroborate her claim that she was being
targeted by the Ugandan government as a result of her familial
ties. The IJ emphasized Matovu's repeated travel to and from
Uganda in the years following her father's death, as well as her
children's attendance at a government-run school, as additional
evidence that she had no cause to fear future persecution.
The IJ further held that the failure of Matovu's asylum
claim meant that she could not satisfy the more stringent
requirements for withholding of removal. The IJ also rejected her
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application for CAT relief, citing the application's lack of any
supporting evidence. Finally, the IJ granted Matovu voluntary
departure.
The BIA dismissed Matovu's appeal in an opinion issued on
September 30, 2008. It agreed with the IJ's determination that
Matovu did not suffer past persecution in Uganda and further agreed
"that there is simply no credible evidence that secret agents seek
to persecute [Matovu] upon her return to Uganda as a result of her
familial ties."
The BIA noted that the IJ had erred in failing to
recognize evidence corroborating Matovu's brother's murder, and in
placing too great an emphasis on Matovu's failure to produce
corroborative documents that could not be reasonably obtained.
The BIA deemed these errors harmless. The BIA found that even if
Matovu's testimony were accepted as true, and the overlooked
evidence regarded as establishing that her brother had been
murdered, she still would not have "demonstrate[d] a nexus between
the brother's and father's deaths, or a nexus between the deaths
and [her] fear of future persecution in Uganda." Without evidence
of such a link, the BIA found Matovu's claim to be "speculative at
best" and affirmed that she was statutorily ineligible for asylum.
The BIA also agreed with the IJ's determinations
regarding Matovu's ineligibility for withholding of removal and CAT
relief. Accordingly, the BIA dismissed Matovu's appeal.
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This petition for review followed.
II.
We review BIA findings of fact under the substantial
evidence standard. Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.
2009). Under this deferential standard, we accept these findings
so long as they are grounded in "reasonable, substantial, and
probative evidence on the record considered as a whole." Shahari
v. Gonzáles, 407 F.3d 467, 473 (1st Cir. 2005) (quoting INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation marks
omitted). Thus, we will affirm unless "any reasonable adjudicator
would be compelled to conclude to the contrary." 8 U.S.C. §
1252(b)(4)(B). When the BIA affirms the IJ's opinion but also
examines some of the bases of that decision, we review both the
IJ's and the BIA's opinions. Limani v. Mukasey, 538 F.3d 25, 30
(1st Cir. 2008).
An applicant for asylum bears the burden of establishing
that he or she suffered past persecution or has a well-founded fear
of future persecution on the basis of "race, religion, nationality,
membership in a particular social group, or political opinion." 8
U.S.C. § 1101(a)(42)(A); see also Ratnasingam v. Holder, 556 F.3d
10, 13 (1st Cir. 2009). An applicant's fear of future persecution
"must be both genuine and objectively reasonable." Aguilar-Solis
v. I.N.S., 168 F.3d 565, 572 (1st Cir. 1999).
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Matovu does not claim past persecution; she argues that
the deaths of her father and brother give rise to reasonable fear
of future persecution on the basis of membership in her nuclear
familial social group. Substantial evidence supports the
conclusion reached by the IJ and the BIA that Matovu does not face
a likelihood of future persecution on her return to Uganda.
Matovu argues that the record compels her view,
attributing the Ugandan government's killing of her father to his
"outspoken views on the rebel movement" and the murder of her
brother to the risk that he might seek compensation for his
father's murder or disseminate information about past Ugandan
government wrongdoing. In the end, Matovu "presents no evidence
other than [her] own speculation" to support this link. Khalil v.
Ashcroft, 337 F.3d 50, 55 (1st Cir. 2003). The IJ and BIA were
"free to reject [her] speculation." Ziu v. Gonzales, 412 F.3d 202,
204 (1st Cir. 2005).
Matovu argues that the BIA should have remanded her
asylum claim to the IJ to consider evidence the IJ had overlooked
about her brother's murder. As the BIA held, the newspaper
articles and affidavit verifying her brother's death do not link
his murder to her father's death or otherwise connect either of
their killings to Matovu's fear of future persecution. Substantial
evidence likewise supports the BIA's conclusion that the letter
from her son indicating that he is "very scared of people coming
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around to our house all the time" fails to connect these
individuals to the Ugandan government or establish a nexus between
Matovu's brother's death and the threat of future persecution.
Ultimately, the denial of Matovu's claim rested on her failure to
produce evidence to support a link between her family members'
deaths and her own fear of future persecution.2 As the overlooked
evidence "would not in any way shed light on this individualized
issue," remand is unnecessary. Chhay v. Mukasey, 540 F.3d 1, 8
(1st Cir. 2008).
Matovu makes only perfunctory arguments in support of her
eligibility for withholding of removal. As the BIA held, her claim
that the "Ugandan government is slowly making [its] way through the
Matovu family" is undermined by the same absence of evidence that
prevented her from meeting the less stringent standard for asylum.
As to her claim for CAT relief, there is nothing to
compel a factfinder's conclusion that Matovu would "more likely
than not . . . be tortured if removed" to Uganda. 8 C.F.R. §
208.16(c)(2).
The petition for review is denied.
2
The record is clear that Matovu's children and her mother
continue to live peaceably in Uganda, further undercutting her
claim of reasonable fear of persecution on the basis of familial
association. Bakuaya v. Mukasey, 533 F.3d 39, 41 (1st Cir. 2008).
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