United States Court of Appeals
FOR THE EIGHTH CIRCUIT
________________
No. 08-1224
________________
Rose Mambwe, *
*
Petitioner, *
* Petition for Review from the
v. * Board of Immigration Appeals.
*
Eric H. Holder, Jr.,1 Attorney *
General of the United States, *
*
Respondent. *
_______________
Submitted: February 11, 2009
Filed: July 16, 2009
________________
Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.
________________
GRUENDER, Circuit Judge.
Rose Mambwe, a native and citizen of Angola, petitions for review of a
decision of the Board of Immigration Appeals (“BIA”) denying her application for
asylum, withholding of removal, and protection under Article 3 of the Convention
Against Torture (“CAT”). For the following reasons, we deny Mambwe’s petition.
1
Eric H. Holder, Jr., became the Attorney General on February 3, 2009, and is
automatically substituted as respondent under Rule 43(c)(2) of the Federal Rules of
Appellate Procedure.
I. BACKGROUND
Mambwe entered the United States on or about June 10, 2000, as a
nonimmigrant visitor with authorization to stay in this country until December 9,
2000. Although Mambwe is a citizen of Angola, she entered the United States using
a Zambian passport, which she has since admitted was obtained by fraud. On
September 25, 2000, Mambwe filed an application for asylum, withholding of
removal, and protection under Article 3 of the CAT.
The former Immigration and Naturalization Service determined that Mambwe
was not eligible for asylum and referred her application to an immigration judge (“IJ”)
to commence removal proceedings. In her master calendar hearing before the IJ,
Mambwe admitted that she was removable under 8 U.S.C. § 1227(a)(1)(B) for
remaining in the United States after December 9, 2000, without authorization.
Mambwe sought relief based on allegations that she suffered past persecution in her
native country of Angola as well as in Zambia, where she lived for more than fifteen
years as a refugee. We have drawn the following narrative of events leading up to
Mambwe’s arrival in the United States from her testimony before the IJ, supplemented
in places with details that appear only in her written application.
Mambwe was born in Lewa, Angola, on October 10, 1979. At the time,
Angola was in the midst of a civil war between the Popular Movement for the
Liberation of Angola (“MPLA”) and the National Union for the Total Independence
of Angola (“UNITA”), which would last for another twenty-three years. Mambwe
reports that her ethnic or tribal group, the Mbundu, was known to be “aligned” with
the MPLA.
In 1984, UNITA forces attacked Mambwe’s village. Mambwe has not heard
from her father or brothers since the attack, so she presumes that they were either
conscripted into UNITA’s military or killed. Mambwe and her mother fled Angola
-2-
and eventually settled in the Meheba Refugee Camp near Solwezi, Zambia. Three
years later, Mambwe’s mother went to Angola to search for the rest of her family,
leaving Mambwe in the care of a friend. Mambwe’s mother never returned.
In 1991, Mambwe was raped by persons who she describes as “boys from the
refugee camp.” Soon thereafter, Mambwe learned that she was pregnant. On January
28, 1992, Mambwe gave birth to a daughter, Norah. Hoping to continue her
schooling, Mambwe left Norah in the care of a Pentecostal minister named Tony
Choni and went to live with two members of Choni’s church, Matthew and Paula
Chishemba, whom she calls foster parents. Mambwe’s foster parents did not permit
her to go to school; instead, they forced her to work on their farm in Zambezi, Zambia,
and sometimes physically abused her. At some point in 1993, Mambwe ran away
from her foster parents’ farm and returned to Meheba, where she spent the next four
years enrolled in the Meheba Secondary School for Refugees. After graduating from
secondary school in 1997, Mambwe moved back to the farm.
In December 1997, Zambezi was attacked by a group of eight to ten men.
Mambwe identified the attackers as members of UNITA’s military because they were
wearing camouflage pants and speaking languages that are common in Angola but rare
in Zambia. During the attack, the UNITA soldiers decapitated Matthew Chishemba
and cut off Paula Chishemba’s hands. The soldiers then kidnapped Mambwe and took
her across the border into Angola. Mambwe was held captive, along with several
other women from Angola and Zambia, for two to three weeks. During that time,
Mambwe was repeatedly raped and beaten. Mambwe and the other captives finally
managed to escape into Zambia with the help of one of the soldiers.
Mambwe returned to Meheba once more, this time to live with Tony Choni and
her daughter Norah. When Choni was transferred to Kitwe, Zambia, in early 1998,
Mambwe went with him. Mambwe spent the next two years living in Kitwe with
Norah, Choni, and Choni’s wife, Christine. According to Mambwe, Choni made
-3-
arrangements for her to travel to the United States in June 2000 using a Zambian
passport that he acquired by falsely identifying Mambwe as a native and citizen of
Zambia. Mambwe testified that when she left Zambia on or about June 8, 2000, she
intended to stay in the United States.
The IJ denied Mambwe’s application for asylum, withholding of removal, and
protection under Article 3 of the CAT. After summarizing Mambwe’s version of the
facts and many of the documents contained in the administrative record, the IJ noted
that there was “conflicting evidence” concerning Mambwe’s credibility.
Notwithstanding several potential red flags in the record, the IJ found that Mambwe’s
testimony was “generally credible.” On the merits of Mambwe’s claim for asylum,
the IJ found that Mambwe met her initial burden by proving that UNITA’s attack on
her village in 1984 constituted past persecution on account of a protected ground.
Although this meant that Mambwe was presumed to have a well-founded fear of
future persecution in Angola, the IJ found that the Department of Homeland Security
(“DHS”)2 rebutted the presumption by proving that there had been a fundamental
change in circumstances in Angola: namely, the end of the civil war between the
MPLA and UNITA in 2002. The IJ went on to find that the 1984 attack did not rise
to the level of severity required to support a grant of “humanitarian asylum” in the
absence of a well-founded fear of future persecution and that Mambwe was not
eligible for asylum based on the other incidents that she described—the rape
perpetrated by “boys from the refugee camp” in 1991 and the attack and kidnapping
carried out by UNITA soldiers in 1997—because they did not involve persecution on
account of Mambwe’s race, religion, nationality, membership in a particular social
group, or political opinion. Having denied Mambwe’s claim for asylum, the IJ held
that Mambwe failed to meet the higher burden of proof required to establish her
eligibility for withholding of removal. Finally, the IJ found that Mambwe did not
2
The former Immigration and Naturalization Service ceased to exist on March
1, 2003, and its functions were transferred to the DHS. See Homeland Security Act
of 2002, Pub. L. No. 107-296, 116 Stat. 2135.
-4-
qualify for protection under the CAT because she failed to present any evidence
tending to show that she would be tortured by or with the acquiescence of the Angolan
government if she returned to Angola.
Mambwe appealed to the BIA, arguing that she suffered past persecution in
Angola and Zambia, that changed conditions in Angola did not negate her fear of
future persecution, and that even if she lacked a well-founded fear of future
persecution she would still merit humanitarian relief. The BIA dismissed Mambwe’s
appeal in its entirety. First, the BIA agreed that Mambwe suffered past persecution
in Angola, noting that the DHS had not challenged the IJ’s finding that Mambwe met
her initial burden by proving that UNITA’s attack on her village in 1984 constituted
past persecution on account of a protected ground. But the BIA found no clear error
in the IJ’s conclusion that the end of the civil war between the MPLA and UNITA in
2002 amounted to a fundamental change in circumstances that rebutted the
presumption that Mambwe had a well-founded fear of future persecution in Angola.
The BIA went on to hold that Mambwe was not eligible for humanitarian asylum
because she “failed to establish compelling reasons for being unwilling or unable to
return to Angola because of any harm that she suffered there on account of a protected
ground.” In particular, the BIA agreed with the IJ’s finding that the 1984 attack did
not rise to the level of severity required to support a grant of humanitarian asylum.
With respect to the other incidents that Mambwe described, the BIA adopted the IJ’s
determination that the rape perpetrated by “boys from the refugee camp” in 1991 and
the attack and kidnapping carried out by UNITA soldiers in 1997 did not involve
persecution on account of Mambwe’s race, religion, nationality, membership in a
particular social group, or political opinion. The BIA therefore concluded that those
incidents could not support a grant of humanitarian asylum. While the BIA noted that
Mambwe “raise[d] no other arguments on appeal,” it summarily affirmed the IJ’s
denial of her application for withholding of removal and protection under the CAT for
the reasons identified by the IJ. The BIA granted Mambwe sixty days to voluntarily
depart the United States before its alternate order of removal took effect.
-5-
Mambwe filed a timely petition for review of the BIA’s decision, arguing that
the denial of her application for asylum, withholding of removal, and protection under
the CAT was erroneous in numerous respects.
II. DISCUSSION
Mambwe first challenges the denial of her claim for asylum. To establish her
eligibility for asylum, Mambwe bore the burden of proving that she qualifies as a
“refugee.” See 8 U.S.C. § 1158(b)(1)(B). In this context, “refugee” is a term of art
which refers to a person who is unable or unwilling to return to her country of
nationality “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.” Id. § 1101(a)(42)(A). Because the statutory definition makes the motive
for persecution “critical,” an applicant “must provide some evidence of it, direct or
circumstantial.”3 INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
The regulation establishing the administrative process for making asylum
determinations provides that an applicant who has proved past persecution on account
3
The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231, included a
provision, codified at 8 U.S.C. § 1158(b)(1)(B)(i), which clarified that “the applicant
must establish that race, religion, nationality, membership in a particular social group,
or political opinion was or will be at least one central reason for persecuting the
applicant.” (Emphasis added.) This amendment did not “radically alter[]” the
applicant’s burden of proof, for “[e]ven before the passage of the REAL ID Act,
[applicants] were required to prove a nexus between the alleged persecution and one
of the statutory grounds.” Singh v. Mukasey, 543 F.3d 1, 5 (1st Cir. 2008) (first
quotation from In re J-B-N & S-M-, 24 I. & N. Dec. 208, 214 (B.I.A. 2007)). Because
Mambwe filed her application before May 11, 2005, the effective date of the relevant
provision, we need not consider the effect, if any, that the “one central reason”
standard would have on Mambwe’s petition. See, e.g., Sinha v. Holder, 564 F.3d
1015, 1021 n.3 (9th Cir. 2009).
-6-
of a protected ground is “presumed to have a well-founded fear of persecution on the
basis of the original claim.” 8 C.F.R. § 1208.13(b)(1). This presumption may be
rebutted, however, if the DHS proves by a preponderance of the evidence that “[t]here
has been a fundamental change in circumstances such that the applicant no longer has
a well-founded fear of persecution in the applicant’s country of nationality.” Id. §
1208.13(b)(1)(i)(A). Even if the DHS meets this burden, the IJ may grant so-called
“humanitarian asylum” if the applicant has either “demonstrated compelling reasons
for being unwilling or unable to return to the country [of nationality] arising out of the
severity of the past persecution,” id. § 1208.13(b)(1)(iii)(A), or “established that there
is a reasonable possibility that he or she may suffer other serious harm upon removal
to that country,” id. § 1208.13(b)(1)(iii)(B).
In dismissing Mambwe’s administrative appeal on her claim for asylum, the
BIA adopted the IJ’s reasoning in relevant part while adding reasoning of its own;
thus, we will consider both decisions. See Rafiyev v. Mukasey, 536 F.3d 853, 856 (8th
Cir. 2008). We review the administrative findings of fact under a substantial evidence
standard. See Manani v. Filip, 552 F.3d 894, 901 (8th Cir. 2009). These findings “are
conclusive unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see Rafiyev, 536 F.3d at 856. And the BIA’s
ultimate decision to deny an application for asylum is “conclusive unless manifestly
contrary to the law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D); see
Rafiyev, 536 F.3d at 856.
There is no dispute that Mambwe met her initial burden by proving that
UNITA’s attack on her village in 1984 constituted past persecution on account of a
protected ground. Nevertheless, Mambwe argues in her petition that the IJ and the
BIA should have found that the attack and kidnapping carried out by UNITA soldiers
in 1997 also constituted past persecution on account of her membership in the
Mbundu ethnic or tribal group as well as her “imputed political opinion.” Mambwe
points to her testimony that the “whole village [of Zambezi] was attacked,” the
-7-
geographic fact that Zambezi is near the Zambian border with Angola, and a State
Department report on human rights practices in Zambia for 2001, which indicated that
UNITA rebels had crossed the Zambian border and abducted civilians. Mambwe
asserts that this evidence proves that the attack and kidnapping were “a politically-
motivated attempt to deter any support for the MPLA.” We disagree.
Mambwe’s theory seems to rest on two major assumptions: first, that a village-
wide attack necessarily involves persecution on account of political opinion or some
other protected ground (or at least is more likely to involve such persecution than
other types of attacks against civilians); and second, that the most plausible
explanation for UNITA’s incursions into Zambian territory was to persecute known,
suspected, or potential supporters of the MPLA, such as Mambwe. Neither of these
assumptions is self-evidently true. On the contrary, there is no shortage of alternative
explanations for why rebel soldiers might carry out a village-wide attack in foreign
territory without engaging in persecution on account of a protected ground, including
simple lawlessness and base criminality.
Even assuming, however, that the evidence Mambwe identified could support
the inference that the attack and kidnapping were politically-motivated, at least in part,
we are not convinced that any reasonable adjudicator would be compelled to reach
that conclusion. See Elias-Zacarias, 502 U.S. at 483-84 (noting that to obtain
“judicial reversal” of an adverse factual determination, an applicant “must show that
the evidence he presented was so compelling that no reasonable factfinder could fail
to find” in his favor). As the DHS recounts, Mambwe’s own testimony about her
alleged persecutors’ motives was equivocal at best. For example, when she was asked
to explain why the soldiers attacked Zambezi, Mambwe stated, “I don’t know why
they attacked; . . . they just attacked.” Likewise, when she was asked to explain why
the soldiers kidnapped her and several other women from Angola and Zambia,
Mambwe initially stated, “they were abusing us [and] raping us [but] I don’t know
why they did that.” Later, Mambwe said she agreed with the notion that the soldiers
-8-
were merely pursuing their own gratification. While Mambwe reported that she heard
the UNITA soldiers went to Zambezi looking for “somebody”—presumably, a
member of the MPLA—she went on to say that the soldiers did not suspect her of
being an enemy and that she did not think they knew she was from Angola.
After considering the record as a whole, we find that Mambwe has failed to
show that any reasonable adjudicator would be compelled to conclude that the attack
and kidnapping carried out by UNITA soldiers in 1997 involved persecution on
account of her race, religion, nationality, membership in a particular social group, or
political opinion. Accordingly, we may not overturn the IJ and the BIA’s
determination that the attack and kidnapping did not constitute past persecution on
account of a protected ground.4
Mambwe next contends that the DHS failed to rebut the presumption that she
had a well-founded fear of future persecution arising from UNITA’s 1984 attack on
her village. We have no difficulty concluding that substantial evidence supports the
IJ and the BIA’s determination that the DHS met its burden by showing that the end
of the civil war between the MPLA and UNITA amounted to a fundamental change
in circumstances. Specifically, a State Department report on human rights practices
in Angola for 2003 indicates that UNITA entered into a cease-fire agreement with the
MPLA-controlled Angolan government in April 2002. Following the cease-fire,
UNITA demobilized, disarmed, and disbanded its military. Killings and abductions
attributed to UNITA reportedly stopped entirely. In November 2002, UNITA signed
a peace agreement that officially ended the twenty-seven year civil war. The report
4
By the same token, Mambwe has failed to show that any reasonable
adjudicator would be compelled to conclude that the rape perpetrated by “boys from
the refugee camp” in 1991 involved persecution on account of a protected ground.
Even if Mambwe had made such a showing, however, we doubt whether the rape
could support a grant of relief from removal to Angola since it allegedly occurred in
Zambia.
-9-
noted in summary that “UNITA [has] progressed significantly in its . . . transition to
a demilitarized political organization and the largest opposition party.” These
developments led most of the refugees who were displaced by the civil war to return
to Angola. According to estimates provided in a 2006 State Department report on
general conditions in Angola, “more than 300,000 of Angola’s original 450,000
refugees have returned home,” while an additional 53,000 refugees were slated to
return in 2005 as part of a repatriation program organized by the United Nations High
Commissioner for Refugees.
Despite the uncontroverted evidence that conditions in Angola have
fundamentally changed, Mambwe insists that she continues to fear persecution
because the civil war “was not put to rest . . . by the signing of the peace accord or
even by the official disarmament of UNITA.”5 Yet Mambwe has not identified any
evidence to support the notion that UNITA continued to engage in militant or
repressive conduct after the civil war officially ended in 2002. Equally, Mambwe has
not identified any evidence that individual members of UNITA sought revenge against
their former enemies (real or perceived), such as members of the Mbundu ethnic or
tribal group who supported the MPLA. Mambwe instead asserts in general terms that
Angola is “still overridden by civil unrest and violence” and that human rights
violations are “prevalent.” This exaggerated description of post-war conditions in
5
Incidentally, Mambwe now claims that she fears persecution by the Angolan
government in addition to UNITA. Mambwe does not allege that she suffered past
persecution at the hands of the MPLA-controlled government; rather, one of the
central premises of her application for asylum was her membership in an ethnic or
tribal group known to be “aligned” with the MPLA. Mambwe testified that she did
not fear any person or group in Angola apart from UNITA, and she makes no attempt
in her petition to explain why the Angolan government might target her for
persecution on account of a protected ground. Thus, we will limit our analysis to
whether the IJ and the BIA erroneously determined that the DHS rebutted the
presumption that Mambwe had a well-founded fear of future persecution arising from
UNITA’s attack on her village in 1984.
-10-
Angola is beside the point, inasmuch as a “general state of unrest” is “typically
insufficient to qualify as persecution.” See Habchy v. Filip, 552 F.3d 911, 914 (8th
Cir. 2009) (quoting Al Yatim v. Mukasey, 531 F.3d 584, 588 (8th Cir. 2008)); see also
Mohamed v. Ashcroft, 396 F.3d 999, 1003 (8th Cir. 2005) (“Harm arising from
general conditions such as anarchy, civil war, or mob violence will not ordinarily
support a claim of persecution.”). Though we do not question the sincerity of
Mambwe’s avowed fear of UNITA, she has not shown that it was unreasonable for the
IJ and the BIA to determine that the end of the civil war amounted to a fundamental
change in circumstances. We therefore reject Mambwe’s contention that the DHS
failed to rebut the presumption that she had a well-founded fear of future persecution
arising from UNITA’s attack on her village in 1984.
Mambwe’s final argument regarding her claim for asylum is that even if she
lacked a well-founded fear of future persecution, she was “entitled” to humanitarian
relief based on the severity of the past persecution that she suffered. Mambwe focuses
mostly on the severity of the attack and kidnapping carried out by UNITA soldiers in
1997. But as we have said, we may not overturn the IJ and the BIA’s determination
that the attack and kidnapping did not constitute past persecution on account of
Mambwe’s race, religion, nationality, membership in a particular social group, or
political opinion. As a result, Mambwe cannot rely on the attack and kidnapping to
establish that she is a refugee under 8 U.S.C. § 1101(a)(42)(A). Since humanitarian
asylum may only be granted to “an alien found to be a refugee on the basis of past
persecution,” it follows that Mambwe cannot establish her eligibility for humanitarian
asylum based on the attack and kidnapping.6 See 8 C.F.R. § 1208.13(b)(1)(iii)(A)
(cross-referencing id. § 1208.13(b)(1)(i)); see also Esenwah v. Ashcroft, 378 F.3d 763,
766-67 (8th Cir. 2004); Menendez-Donis v. Ashcroft, 360 F.3d 915, 919 (8th Cir.
2004).
6
The same reasoning would foreclose the alternative argument, which Mambwe
did not fully develop in her petition, that she was eligible for humanitarian asylum
based on the rape perpetrated by “boys from the refugee camp” in 1991.
-11-
The question thus becomes whether UNITA’s attack on Mambwe’s village in
1984—which did constitute past persecution on account of a protected ground—rises
to the level of severity required to support a grant of humanitarian asylum. We have
consistently noted that humanitarian asylum is reserved for instances where an
applicant has suffered persecution that was “particularly atrocious.” See, e.g.,
Cigaran v. Heston, 159 F.3d 355, 358 (8th Cir. 1998). Relevant factors to consider
include “the degree of harm suffered, the length of time over which the harm was
inflicted, and evidence of psychological trauma resulting from the harm.” Abrha v.
Gonzales, 433 F.3d 1072, 1076 (8th Cir. 2006) (citing In re N-M-A-, 22 I. & N. Dec.
312, 326 (B.I.A. 1998) (en banc)).
Mambwe does not offer any meaningful argument about the severity of the
1984 attack. Our independent examination of the record shows that Mambwe denied
being physically harmed during the attack and reported that she has not sought
medical treatment for symptoms of psychological trauma. Mambwe was not detained
by UNITA forces, and she gives no indication of how long the attack itself lasted.
While Mambwe presumes that her father and brothers were conscripted or killed, she
apparently did not witness their deaths. In our view, this evidence fails to establish
that it was an abuse of discretion for the IJ and the BIA to deny Mambwe’s request
for humanitarian asylum. See Abrha, 433 F.3d at 1076 (“Not all harm is severe
enough to warrant a discretionary grant of asylum . . . .”). We therefore reject
Mambwe’s contention that she was “entitled” to humanitarian relief based on the
severity of the past persecution that she suffered.7
7
Mambwe presents an alternative basis for humanitarian asylum in her reply
brief, asserting that there is “[a] reasonable possibility that she would suffer other
serious harm upon removal to [Angola].” See 8 C.F.R. § 1208.13(b)(1)(iii)(B).
Mambwe did not raise this argument in her opening brief, so we decline to consider
it. See, e.g., Navarijo-Barrios v. Ashcroft, 322 F.3d 561, 564 n.1 (8th Cir. 2003).
-12-
Mambwe also challenges the denial of her claims for withholding of removal
and protection under the CAT. We do not reach the merits of either challenge because
Mambwe failed to raise these issues in her appeal to the BIA. See, e.g., Rafiyev v.
Mukasey, 536 F.3d 853, 858 (8th Cir. 2008) (citing Etchu-Njang v. Gonzales, 403
F.3d 577, 582 (8th Cir. 2005)); see also Zine v. Mukasey, 517 F.3d 535, 540-41 (8th
Cir. 2008) (warning that judicial review of a claim for withholding of removal may
be “precluded for failure to exhaust” if a petitioner does not specifically appeal the
IJ’s denial of that claim to the BIA); Margos v. Gonzales, 443 F.3d 593, 600 (7th Cir.
2006) (holding that the petitioner failed to exhaust a claim for protection under the
CAT because she did not raise the issue in her appeal to the BIA). There is a split of
authority in this circuit about “whether the failure to raise an issue before the BIA is
a jurisdictionally-fatal failure to exhaust an administrative remedy . . . [under] 8
U.S.C. § 1252(d)(1),” or if it “simply raises the non-jurisdictional question whether
review of that issue is precluded by the doctrine of administrative exhaustion.” Zine,
517 F.3d at 539-40. The distinction makes no difference to our analysis. For even if
we assume that Mambwe’s failure to exhaust the relevant issues is not jurisdictional,
we see no reason why an exception to the issue exhaustion requirement would be
warranted here. Cf. Etchu-Njang, 403 F.3d at 584 (“Assuming for the sake of
argument that there may be exceptions to the issue exhaustion requirement, we do not
agree that an exception could be justified in this case.”).
Although we have recognized that two of our sister circuits hold that an issue
may be considered exhausted “if the BIA thoroughly addresses [the] issue sua
sponte,” we have yet to decide whether that exception applies in this circuit. See
Rafiyev, 536 F.3d at 858-59 (citing Sidabutar v. Gonzales, 503 F.3d 1116, 1119-22
(10th Cir. 2007); Socop-Gonzalez v. INS, 272 F.3d 1176, 1186 (9th Cir. 2001)). But
cf. Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1251 (11th Cir. 2006) (per
curiam) (“[W]e think the goals of exhaustion are better served by our declining to
review claims a petitioner, without excuse or exception, failed to present before the
BIA, even if the BIA addressed the underlying issue sua sponte.”). We need not
-13-
weigh in on the general applicability of the exception; because the BIA summarily
affirmed the IJ’s denial of Mambwe’s application for withholding of removal and
protection under the CAT without thoroughly addressing the underlying issues, the
exception clearly would not apply in this case. See Rafiyev, 536 F.3d at 859 (“We
need not decide whether . . . discussion by the BIA ever can exhaust an issue not
raised by the petitioner, because the meager record created here is insufficient to do
so.”); see also Sidabutar, 503 F.3d at 1122 (“Of course, this [exception] should be
construed narrowly to circumstances where the BIA issues a full explanatory opinion
or a discernible substantive discussion on the merits over matters not presented by the
alien.”).8
Finally, Mambwe argues that the IJ and the BIA violated her due process rights
by failing to develop the record and to consider all of the evidence, by misapplying
various legal standards, and by failing to apply pertinent legal doctrines. Mambwe
offers little or no original material in support of her due process claim; she instead
merely reiterates, in constitutional terms, the arguments that we have already
discussed. Cf. Awad v. Gonzales, 494 F.3d 723, 727 (8th Cir. 2007) (rejecting a
petitioner’s due process claim because it “principally reiterate[d] his disagreement
with the IJ’s and BIA’s determinations against him”), cert. denied, 553 U.S. ---, 128
S. Ct. 2474 (2008). Nevertheless, to the extent Mambwe’s due process claim relates
to the proceedings before the IJ, we may not consider it because Mambwe failed to
8
Even if we were to reach the merits, we still would not overturn the IJ and the
BIA’s denial of Mambwe’s claims for withholding of removal and protection under
the CAT. We note in this regard that Mambwe’s failure to establish that she had a
well-founded fear of future persecution in Angola would preclude her from meeting
the higher burden of proof associated with her claim for withholding of removal. See
Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir. 2005). Similarly, because Mambwe
has not identified any evidence that she might be tortured for reasons unrelated to her
claims for asylum and withholding of removal, her claim for protection under the
CAT would necessarily fail as well. See id.
-14-
raise the issue in her appeal to the BIA.9 See, e.g., Rafiyev, 536 F.3d at 858 (citing
Etchu-Njang, 403 F.3d at 582); see also Kimumwe v. Gonzales, 431 F.3d 319, 323
(8th Cir. 2005) (declining to consider a petitioner’s “contentions that he was denied
due process in the hearing before the [IJ], because he failed to present those issues in
an appeal to the BIA”). To the extent Mambwe’s due process claim relates to the
proceedings before the BIA, we reject it on the merits because Mambwe has not
shown that her administrative appeal was fundamentally unfair. See Castro-Pu v.
Mukasey, 540 F.3d 864, 869 (8th Cir. 2008) (“To be entitled to relief on due process
grounds, a petitioner must show fundamental unfairness and prejudice, that is, that the
outcome of the proceeding may well have been different absent the procedural
irregularity.”).
III. CONCLUSION
For the foregoing reasons, we deny Mambwe’s petition for review. Because
Mambwe moved for a stay of removal within sixty days of the BIA’s decision, we
hold that our order granting her motion included a stay of her voluntary-departure
period from the date on which her motion was filed.10 See Clemente-Giron v. Holder,
9
Mambwe asserts that her due process claim is immune from the issue
exhaustion requirement because “the IJ’s misapplication of legal standards or failure
to apply the law [are] not . . . mere procedural error[s] that the [BIA] could remedy.”
Cf. Geach v. Chertoff, 444 F.3d 940, 945 (8th Cir. 2006) (holding that reviewing
courts “have subject-matter jurisdiction over aliens’ unexhausted constitutional claims
unless the claims concern procedural errors correctable by the administrative
tribunal” (emphasis added)). We are not persuaded, however, because misapplying
legal standards and failing to apply pertinent legal doctrines (here, doctrines relating
to the motive for alleged persecution) would plainly constitute procedural errors that
the BIA had authority to correct, either by granting Mambwe the relief she requested
or by remanding to the IJ with instructions on how to apply the law properly.
10
A regulation adopted by the Executive Office for Immigration Review
(“EOIR”) provides that as of January 20, 2009, “any grant of voluntary departure shall
-15-
556 F.3d 658, 664 (8th Cir. 2009). The remaining time that Mambwe has to
voluntarily depart the United States will start to run when our mandate issues. See
Falaja v. Gonzales, 418 F.3d 889, 899-900 (8th Cir. 2005).
_____________________________
terminate automatically upon the filing of [a] petition [for review] or other judicial
challenge.” 8 C.F.R. § 1240.26(i). Since the EOIR has expressly stated that this
regulation is to be applied only prospectively, it does not affect our order granting a
stay of Mambwe’s voluntary-departure period. See Voluntary Departure: Effect of
a Motion to Reopen or Reconsider or a Petition for Review, 73 Fed. Reg. 76,927,
76,936 (Dec. 18, 2008).
-16-