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, 426 F.3d 520, 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, 562 F.3d 510, 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, 417 F.3d 268, 271 (2d Cir. 2005). We similarly
assume credibility but, insofar as we remand, we do not
foreclose the BIA from considering that issue further.
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encompassed by one of the statutory asylum grounds. Cf.
Melgar de Torres v. Reno, 191 F.3d 307, 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, 533 F.3d 63, 71-72 (1st Cir. 2008) (no
persecution on account of protected ground when harm
resulted from “personal grudge”); Marquez v. INS, 105 F.3d
374, 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
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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, 376 F.3d 75, 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,
598 F.3d 103, 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, 361 F.3d 161, 168 (2d Cir.
2004).
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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.” Khouzam, 361 F.3d at 171
(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
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against members of state security forces.” Id. at 7.
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.” Id. at 15.
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, 420 F.3d 70, 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.
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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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