PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1735
LEOPOLD MUNYAKAZI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 24, 2016 Decided: July 11, 2016
Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.
Petition denied by published opinion. Judge Shedd wrote the
opinion, in which Judge Traxler and Judge Floyd concurred.
ARGUED: Ofelia Lee Calderon, CALDERON SEGUIN PLC, Fairfax,
Virginia, for Petitioner. Jeffrey Lawrence Menkin, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Mark C. Walters, Senior Counsel for
National Security, National Security Unit, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
SHEDD, Circuit Judge:
Leopold Munyakazi petitions for review of the Board of
Immigration Appeals’ (BIA) denial of his applications for
asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Because substantial evidence
supports the agency’s rulings, we deny the petition.
I.
As a matter of background, we begin by quoting a United
States State Department summary of the 1994 Rwandan genocide:
Longstanding tensions in the country culminated in the
1994 state-orchestrated genocide, in which Rwandans
killed between 750,000 and one million of their fellow
citizens, including approximately three-quarters of
the Tutsi population. Following the killing of the
president in 1994, an extremist interim government
directed the Hutu-dominated national army, militia
groups, and ordinary citizens to kill resident Tutsis
and moderate Hutus. The genocide ended later the same
year when the predominantly Tutsi RPF . . . defeated
the national army and Hutu militias and established an
RPF-led government of national unity.
(J.A. 527).
Munyakazi, an ethnic Hutu, is a native and citizen of
Rwanda who came to the United States in 2004 on a business visa.
Prior to his visa’s expiration, Munyakazi filed an application
for asylum and withholding of removal. While in the United
States, Munyakazi, who worked as a college professor in Rwanda,
began teaching at Montclair State University in New Jersey. In
October 2006, he spoke at a faculty forum at the University of
2
Delaware. During this speech, Munyakazi expressed his opinion
that the 1994 massacre of ethnic Tutsis in Rwanda was
fratricide, not genocide. He would express similar views in
another speech later that year.
In November 2006, Rwanda issued an international arrest
warrant for Munyakazi, charging him with genocide and genocide
negation. Rwanda issued a second warrant for the same charges in
October 2008. In January 2009, almost five years after Munyakazi
filed his initial asylum application, the Department of Homeland
Security (DHS) issued him a notice to appear, charging him with
removability. Munyakazi conceded removability but filed revised
applications for asylum and withholding of removal. Munyakazi
also requested CAT protection. An Immigration Judge (IJ) held a
multi-day hearing on Munyakazi’s removability.
Munyakazi testified at the hearing that at the time the
genocide began he and his family lived in the Rwandan capital,
Kigali. Although a travel ban was in place, Munyakazi and his
family joined a convoy 1 to his native village of Kirwa. On the
morning of April 19, 1994, Munyakazi briefly went to a local
government office in Kirwa to report an attempted break-in at
his home in Kirwa. He then returned to that home and did not
1
The convoy was headed by a high-ranking Hutu general who
has since been indicted for participation in the genocide.
3
leave until after April 22. Munyakazi testified that sometime
after April 22 he helped five Tutsi women obtain Hutu ID cards.
Munyakazi’s testimony that he remained indoors for several
days is important because following a rally at a soccer stadium
on April 19, ethnic Hutus killed virtually every Tutsi in Kirwa. 2
While acknowledging this fact, Munyakazi testified that he saw
little to no violence and did not know anyone responsible for
any of the violence. When pressed with accounts from
genocidaires—persons convicted of genocide in the Rwandan
courts—that he was involved in the violence in Kirwa, Munyakazi
testified that the Rwandan government was forcing them to speak
out against him.
Munyakazi further testified that he was arrested later in
1994 and held without charge until 1999. During his time in
captivity, he was subjected to beatings and psychological
stress.
Munyakazi’s wife, Catherine Mukantabana, also testified
before the IJ. Catherine, an ethnic Tutsi, generally agreed with
Munyakazi’s testimony regarding their exit from Kigali and
2The Immigration and Customs Enforcement (ICE) Agent who
conducted an investigation into Rwanda’s allegations against
Munyakazi testified that investigators could find only one
unattached (i.e., not married to a Hutu) Tutsi in the entire
village—a man who was a child at the time of the genocide and
hid in the woods.
4
travel to Kirwa. Discussing their time in Kirwa, she testified
that she did not believe there was a meeting on April 19 but
conceded that her husband left the house that morning to go to
the government offices and to run some errands. She testified
that Munyakazi helped five Tutsis receive Hutu ID cards and that
he did not participate in the genocide. Importantly, she
testified that the five Tutsis arrived at their house prior to
April 19 and that Munyakazi took their names to Kirwa’s mayor on
April 19. She also testified that many members of her family
were killed during the genocide, and the IJ noted that she was
“tense and stressed” discussing the genocide and that “[h]er
hands were shaking.” (J.A. 896).
In addition to this testimony, Munyakazi also presented
several other witnesses, including former Attorney General
Ramsey Clark, who testified generally about the Rwandan justice
system and the genocide. None had first-hand knowledge of
Munyakazi’s actions during April 1994. Munyakazi also placed
into evidence five letters from the Tutsis he claimed to have
aided in obtaining Hutu ID cards. One letter writer stated that
Munyakazi assisted her in obtaining an ID card on April 19,
while another stated that Munyakazi aided her on April 20.
In response to Munyakazi’s evidence, the Government put
forth testimony and investigation reports from ICE Special Agent
Jason Hyman. Hyman, along with two DHS agents, traveled to
5
Rwanda in June 2009 to conduct an independent investigation into
the Rwandan government’s accusations against Munyakazi. The DHS
investigators created an interview list after reviewing Rwandan
government files. The Rwandan prosecutors gave DHS latitude in
conducting the investigation, and the Rwandans’ main role was
locating interpreters and procuring the witnesses. Hyman
testified that they tried to give the Rwandan government little
notice of the interviewees to minimize the chances that the
government would pressure them. The investigators would also ask
each witness if they had spoken to Rwandan authorities and
whether their statements were coerced. Importantly, the DHS
investigators uncovered several witnesses, including a
genocidaire, who had never spoken to Rwandan officials about
Munyakazi.
The DHS investigation confirmed the broad outline of
Munyakazi’s testimony—that he and his family fled Kigali in
April, traveled to Kirwa, and remained there during the
genocide. The investigation found that the genocide in Kirwa
began following a meeting at a soccer field on April 19. In
contrast to Munyakazi’s testimony, however, the investigation
revealed that Munyakazi, wearing banana leaves, 3 addressed the
3
The rally leaders told the attendees to wear banana leaves
in order to identify themselves as Hutu.
6
crowd at the soccer field on April 19 and helped to instigate
the genocide. After the meeting, Munyakazi led a group of Hutus
to find Felicien, an educated Tutsi who was eventually killed.
Munyakazi also had a role in orchestrating night raids against
Tutsi homes.
In total, the investigators interviewed 22 witnesses, six
of whom were convicted of genocide. Each interview was between
two-and-a-half and three hours in length. Generally, the
witnesses were afraid of Munyakazi and feared retribution from
him if he found out they cooperated with authorities. Several
witnesses testified that members of Munyakazi’s family contacted
them and offered them money if they refused to implicate
Munyakazi. 4 Importantly, “[t]he ICE investigation revealed no
individuals who attended the large meeting [at the soccer field]
and who did not see Dr. Munyakazi there.” (J.A. 911).
Hyman was recalled to the stand to address the interview
reports individually. Relevant here, Hyman discussed an
interview with TM, a convicted genocidaire. TM was not
identified by the Rwandans and had never been previously
interviewed by Rwandan authorities. The investigators uncovered
4
The investigators tracked down a nephew who was allegedly
responsible for the attempted bribes. The nephew denied offering
bribes to witnesses but did admit that Munyakazi participated in
the soccer field meeting wearing banana leaves. The nephew also
admitted to his own participation in the genocide.
7
his name during another interview and tracked him down the next
day. TM told the investigators that he was at the soccer meeting
and that Munyakazi was there wearing banana leaves. Munyakazi
told other Hutus to wear the leaves to avoid being mistaken as a
Tutsi. TM was able to draw a diagram of the soccer field and the
relative position of the leaders, including Munyakazi. TM told
the investigators that after the meeting Munyakazi led a group
to Felicien’s house. During this trip, Munyakazi met with a
smaller group of Hutus and urged them to kill Tutsis because
they were enemies of true Rwandans.
After the hearing, the IJ issued a 63-page opinion denying
Munyakazi’s applications for asylum, withholding of removal, and
protection under CAT. The IJ began by finding that Munyakazi was
not credible. The IJ noted that Munyakazi specifically testified
that he did not leave his house from April 19-22 but that
letters from two of the Tutsis he claimed to help, as well as
the testimony of his wife, suggested otherwise. “[T]hese
discrepancies,” the IJ found, “go to the heart of where the
Respondent was and what he was doing on and after April 19,
1994.” (J.A. 923). In addition, the IJ explained that
Munyakazi’s testimony about the genocide “is quite vague and
appears at odds with what would be expected given the size of
the village, given the significance of the events, and given his
wife’s recollections.” (J.A. 924). The IJ also discussed
8
Catherine’s testimony, concluding that she “has an interest” in
the outcome of the asylum petition, and, “[g]iven the extent of
the genocide in Kigali and Kirwa, [she] likely owes her life and
those of her children to her marriage to” Munyakazi. (J.A. 925).
Addressing the DHS investigation, the IJ found that, out of
an abundance of caution, she would not credit the testimony of
the convicted genocidaires. The IJ made an exception for TM, the
individual uncovered by the investigators. The IJ also found
that the testimony of the genocide survivors who identified
Munyakazi as a participant was credible. The IJ noted that in
contrast to genocidaires who have an incentive to point the
finger at others in exchange for leniency, genocide survivors
face violence and intimidation for testifying against genocide
participants. (J.A. 928). The IJ referred to several survivors
who placed Munyakazi at the soccer field or who heard that
Munyakazi was looking for them. The IJ summarized her views on
the investigation as follows:
There is certainly the possibility of the Rwandan
government attempting to pressure victims and other
witnesses. This does not explain the variations in
accounts from the witnesses or the fact that these
variations remain consistent with each other. It also
does not justify the risk being taken by victims and
other witnesses, since there is no indication that the
Rwandan Government can protect adequately those
individuals. In addition, the ICE special agents
sought to identify witnesses independently and to give
minimal notice to the Rwandan government when they
needed assistance in locating witnesses. This limited
the time available for Rwandan government officials to
9
influence or coach witnesses. Finally, while record
evidence establishes that those accused of genocide
are pressured to implicate others in exchange for
leniency, evidence in the record regarding any
improper influence of other witnesses by the Rwandan
government is vague and far less specific.
(J.A. 929-30).
Given these factual findings, the IJ then addressed whether
Munyakazi was eligible for asylum. First, the IJ concluded that
Munyakazi, even with the adverse credibility finding, qualified
for asylum because he has a well-founded fear of future
persecution based on a protected ground—his political opinion.
Nonetheless, the IJ found Munyakazi was statutorily ineligible
for asylum under the persecutor bar because he “ordered,
incited, assisted, or otherwise participated in the persecution
of others on account of their Tutsi ethnicity.” (J.A. 932). The
IJ found that the DHS investigation supported a finding that
Munyakazi participated in the genocide and that Munyakazi failed
to prove otherwise by preponderance of the evidence. This
finding also rendered Munyakazi ineligible for withholding of
removal. Finally, the IJ found Munyakazi was not entitled to
relief under CAT.
Munyakazi appealed to the BIA. A three-member panel of the
BIA dismissed the asylum and withholding of removal appeals,
upholding the IJ’s credibility determinations and her conclusion
10
that the persecutor bar applied. 5 The BIA remanded the CAT claim
for further factual findings.
Thereafter, the IJ held another evidentiary hearing on
Munyakazi’s CAT claim. Following the hearing, the IJ issued a
written order denying relief. The IJ found that Munyakazi
claimed to be “mistreated” during his earlier detention but that
“significant developments” in Rwanda gave his allegations of
mistreatment “little relevance” to his current situation. (J.A.
101). The IJ did find that Munyakazi was likely to be arrested
and detained if he was returned to Rwanda and that, because he
was facing charges relating to genocide, he would be detained in
a civilian detention facility rather that a military facility.
This distinction was crucial to the IJ because, although the
civilian facilities have “poor conditions,” those conditions—
overcrowding, visit limitations, inconsistent food and medicine
and sporadic beatings—did not meet the legal definition of
torture. (J.A. 102). The IJ relied on a 2012 State Department
Report as well as reports from Amnesty International and
monitoring reports from the International Criminal Tribunal for
5The BIA did not address whether Munyakazi qualified for
asylum notwithstanding the persecutor bar.
11
Rwanda (ICTR), to support the finding that accused genocidaires
were held in civilian detention facilities. 6
In reaching the conclusion that Munyakazi more likely than
not would be detained in a civilian prison, the IJ noted that
his own witness, Simeon Babonampoze, testified that he did not
see any persons charged with genocide at the military facility
where he was detained. The IJ also explained that while
Munyakazi claimed that his arrest warrant was politically
motivated, there was no evidence that Rwanda was charging him
with terrorist or political offenses, and that Munyakazi was not
a member of the opposition party, the United Democratic Forces
(UDF).
Munyakazi again appealed to the BIA, and the BIA dismissed.
The BIA concluded that the IJ’s factual findings were not
clearly erroneous and that, with those factual findings—
including the finding that Munyakazi would be detained in a
civilian prison—he could not show it was more likely than not
that he would be tortured. The BIA agreed with the IJ that even
though conditions in civilian prisons were “far from ideal,”
Munyakazi “has not established that the conditions amount to
torture.” (J.A. 4).
6In contrast, the IJ determined that conditions in military
detention facilities were much more severe and might rise to the
level of torture in some cases.
12
Munyakazi filed a timely petition for review of both of the
BIA’s orders. Munyakazi also filed a motion for stay of
deportation, which we denied.
II.
A.
Munyakazi first petitions for review of the denial of his
applications for asylum and withholding of removal. Our standard
of review in this area is familiar. To begin, because the BIA
adopted the IJ’s decision and provided additional reasons, we
review both decisions. 7 Hernandez-Avalos v. Lynch, 784 F.3d 944,
948 (4th Cir. 2015). We must uphold the decision to deny relief
unless it is “manifestly contrary to the law and an abuse of
discretion.” 8 U.S.C. § 1252(b)(4)(D). We review the agency’s
findings of fact for substantial evidence, a “narrow and
deferential” review, Djadjou v. Holder, 662 F.3d 265, 273 (4th
Cir. 2011), under which the agency’s factual findings “are
conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). See also
Djadjou, 662 F.3d at 273 (“Substantial evidence exists to
support a finding unless the evidence . . . was such that any
reasonable adjudicator would have been compelled to conclude to
7For ease of reference, we refer to the BIA and IJ
collectively as “the agency.”
13
the contrary”) (internal quotation marks omitted). We review any
legal issues de novo. Marynenka v. Holder, 592 F.3d 594, 600
(4th Cir. 2010).
The agency’s adverse credibility finding is also subject to
the substantial evidence standard. We uphold an adverse
credibility determination if the agency provides specific,
cogent reasons that go to the heart of Munyakazi’s claim for
relief. 8 Djadjou, 662 F.3d at 274. “[O]missions, inconsistent
statements, contradictory evidence, and inherently improbable
testimony are appropriate bases for making an adverse
credibility determination.” Id. at 273.
B.
The agency found that Munyakazi was statutorily barred from
receiving asylum or withholding of removal under what is
commonly called the “persecutor bar.” By statute, an asylum
applicant must prove that he is a “refugee.” 8 U.S.C.
§ 1158(b)(1)(A). A refugee is defined, inter alia, to exclude
any person who “ordered, incited, assisted, or otherwise
8This “heart of the claim” standard was modified by the
REAL ID Act of 2005, which permits an IJ to base a credibility
determination “without regard to whether [an inconsistency] goes
to the heart of the applicant’s claim.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). Because Munyakazi’s application for asylum
was filed prior to the REAL ID Act’s implementation, that
standard is inapplicable here. Tassi v. Holder, 660 F.3d 710,
716 n.6 (4th Cir. 2011)
14
participated in the persecution of any person on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A)
(asylum); 1231(b)(3)(B)(i) (withholding of removal). If there is
evidence showing that Munyakazi participated in the persecution
of a particular social group (here, the Tutsis), then “he must
prove by a preponderance of the evidence that he is not barred
from relief on this ground.” Higuit v. Gonzales, 433 F.3d 417,
420 (4th Cir. 2006). The “evidence” necessary to trigger the bar
is not high—it must only “raise the inference” of participation
in persecution. Alvarado v. Gonzales, 449 F.3d 915, 930 (9th
Cir. 2006). In addition, “while the commission of actual
physical harm may be sufficient to bring an alien within the
persecution exception, it is not necessary.” Higuit, 433 F.3d at
421. Accordingly, if there is evidence that Munyakazi was
present and participating during the April 19 meeting at the
soccer field in Kirwa, the persecutor bar would apply regardless
of whether he personally committed acts of violence against
Tutsis.
In his petition, Munyakazi argues there is no “evidence”
that he assisted or participated in the genocide and that he
proved by a preponderance of the evidence that he was not barred
from relief. We address each argument in turn.
15
C.
In finding that Munyakazi was a persecutor, the agency
relied on the DHS interviews with: (1) TM, the genocidaire that
DHS tracked down independently of the Rwandan government; (2)
two survivors who said they saw Munyakazi at the soccer field
meeting; (3) a survivor who was hiding in her house when
Munyakazi came and told the Hutus to spare her because she was
married to a Hutu; (4) a survivor who was hiding when men came
to her house and told her Munyakazi had ordered them to take her
children and grandchildren; and (5) a survivor who hid in the
woods during the genocide and was told that Munyakazi had been
searching for her father in order to kill him. These interviews
clearly constitute sufficient “evidence” that Munyakazi assisted
or participated in the genocide.
Munyakazi launches a broad assault against the DHS
investigation and Special Agent Hyman, asserting that the
interviews were flawed because the Rwandan government pressures
witnesses to implicate people in the genocide and the DHS
investigators relied on documents supplied by the Rwandan
government during the investigation. 9 But, the agency considered
9 Munyakazi also asserts that his release in 1999 proves he
was not implicated in the genocide. Special Agent Hyman
testified that a Rwandan official said that many people were
released because the newly formed government lacked the ability
to bring cases to trial. As we have seen in other contexts, it
(Continued)
16
this argument and decided not to consider most of the
genocidaires’ interviews on this basis. The agency was
nonetheless permitted to weigh the testimony of Special Agent
Hyman that the survivors were being truthful and were fearful of
Munyakazi because the “evidence in the record regarding . . .
improper influence” of the survivors was “vague and far less
specific.” (J.A. 930). The agency was likewise permitted to
credit the interview with TM because there was no evidence that
the government had the opportunity to influence his interview.
DHS sent three investigators to Rwanda for several weeks to
investigate the allegations against Munyakazi. While the DHS
investigators necessarily relied on Rwandan documents to start
their investigation, to the extent practicable they kept the
Rwandan prosecutors at arms-length and made interview requests
as late as possible to minimize the possibility of undue
coercion. It is unclear what Munyakazi believes the agents
should have done instead. DHS, instead of simply accepting
Rwanda’s allegations, performed its own investigation under
less-than-ideal circumstances, and nothing in the record compels
us to find that the agency should not have credited that
is hardly rare for governments to find perpetrators many years
later. See Szehinskyj v. Attorney General, 432 F.3d 253, 254 (3d
Cir. 2005) (noting recent spate of denaturalization proceedings
against former Nazis based on new evidence).
17
investigation. Munyakazi’s attempt to second guess the DHS
investigation and survivor interviews is an effort to have us
reweigh the evidence in his favor, but our standard of review
“does not permit a re-weighing of the evidence.” Lin v. Holder,
736 F.3d 343, 351 (4th Cir. 2013). Accordingly, we hold that
substantial evidence supports the agency’s conclusion that
Munyakazi assisted and participated in the genocide.
D.
Given this conclusion, the burden shifts to Munyakazi to
show that he is not subject to the persecutor bar. The agency
concluded that Munyakazi failed to satisfy his burden, primarily
because his testimony was not credible. In reaching that
finding, the agency pointed to the discrepancies regarding: (1)
what Munyakazi was doing between April 19 and April 22; and (2)
his vague testimony about the genocide in Kirwa.
Munyakazi contends that any confusion about dates in April
1994 did not go to the “heart” of his asylum claim. We disagree.
As the BIA cogently explained, these discrepancies were “central
to [his] claim because they address where he was and what he was
doing during the genocide.” (J.A. 770). Munyakazi testified
unequivocally that, other than a quick errand on the morning of
April 19, he did not leave his house between that day and April
22 and that he did not help obtain Hutu ID cards until after
that date. Two of the Tutsis submitted letters stating that he
18
aided them on April 19 and April 20, and his wife testified that
he went out for some time the morning of April 19. It is
possible that the letters refer to the dates Munyakazi helped
the women at his home, not at a government office, but if the
administrative “record plausibly could support two results: the
one the [agency] chose and the one [Munyakazi] advances,
reversal is only appropriate where the court finds that the
evidence not only supports [Munyakazi’s] conclusion, but compels
it.” Niang v. Gonzales, 492 F.3d 505, 511 (4th Cir. 2007)
(internal quotation marks and alterations omitted). The record
supports the agency’s conclusion that the letters conflict with
his testimony.
Thus, nothing compels the conclusion Munyakazi advances.
Munyakazi specifically testified he did not go to the government
offices with the Tutsis until after April 23, their letters said
otherwise, and his own wife testified that he took the list of
Tutsis he was obtaining ID cards for when he left the house on
April 19. These inconsistencies “were neither trivial nor
unconnected to the core” of Munyakazi’s claim. Dankam v.
Gonzales, 495 F.3d 113, 122 (4th Cir. 2007). Those dates in
April, and Munyakazi’s activities on those dates, are central to
whether Munyakazi assisted in the genocide.
We upheld an adverse credibility finding under similar
circumstances in Dankam. In Dankam, the IJ had focused on the
19
alien’s “internal inconsistencies” regarding three alleged
arrests and detentions. Id. We explained that, “[b]ecause the
arrests are the key events underlying Dankam’s claim for asylum,
it follows that the details surrounding these arrests and the
dates on which they occurred are more than minor or trivial
details.” Id. (emphasis added). Likewise, the entirety of
Munyakazi’s claim hinges on what he was doing on April 19 and
the days immediately following; discrepancies about his
activities on those days necessarily go to the heart of his
claim.
Munyakazi’s vague testimony about the genocide also
supports the adverse credibility determination. He testified
that he saw virtually no outward signs of violence toward Tutsis
in Kirwa—no bodies, no destruction, no idea who started the
alleged violence. Special Agent Hyman testified that Kirwa was a
small agrarian village where everyone “seemed to know each
other.” (J.A. 902). Hyman also testified that there were very
few Tutsis left in the village, and only one who was not married
to a Hutu. Munyakazi is a college professor, and it strains
credulity to believe that he was unaware that every Tutsi in his
small village was being butchered even as he sat at home.
Munyakazi points to language in the DHS investigation that the
genocide was not as severe in Kirwa’s province as elsewhere in
Rwanda, but that statement must be read against Special Agent
20
Hyman’s testimony that there were few Tutsis remaining in Kirwa.
We give the agency “ample room” to “exercise common sense” in
making a credibility determination “even if the IJ cannot point
to” specific record evidence. Tewabe v. Gonzales, 446 F.3d 533,
540 (4th Cir. 2006) (internal quotation marks omitted). Common
sense supports the agency’s finding that Munyakazi’s vague
testimony about widespread killings in a small village lacked
credibility.
In sum, the inconsistencies regarding Munyakazi’s
activities on April 19 and the following days, as well as
Munyakazi’s vague testimony about the genocide in Kirwa “add to
and create a cumulative effect that is sufficient to support” an
adverse credibility finding. Dankam, 495 F.3d at 123.
Substantial evidence thus supports the agency’s adverse
credibility finding.
Here, upholding the adverse credibility finding requires us
to deny the petition for review. With that finding intact,
substantial evidence supports the BIA’s conclusion that
Munyakazi cannot meet his burden. Without his own testimony,
Munyakazi is left with the five similarly worded letters from
the Tutsis he purportedly assisted and the general testimony
from his witnesses regarding conditions in Rwanda and alleged
coercion on the part of the Rwandan government. None of this
testimony compels a conclusion that Munyakazi showed by a
21
preponderance of the evidence that he did not assist or
participate in the genocide.
Accordingly, we conclude that substantial evidence supports
the agency’s ultimate conclusion that Munyakazi assisted or
participated in the Rwandan genocide. Given that conclusion, the
agency correctly determined that Munyakazi is barred from
receiving asylum or withholding of removal. 10
III.
Munyakazi also challenges the agency’s denial of his
request for protection under CAT. “[O]ur standard of review is
deferential to the BIA,” and we review the denial of Munyakazi’s
claim for substantial evidence. Mulyani v. Holder, 771 F.3d 190,
200 (4th Cir. 2014). Thus, the “administrative findings of fact
are conclusive unless any reasonable adjudicator would be
compelled to conclude” otherwise. 8 U.S.C. § 1252(b)(4)(B). To
establish relief under CAT, Munyakazi must show it is “more
likely than not that he . . . would be tortured if removed to
the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2).
Torture is relevantly defined as “any act by which severe pain
or suffering, whether physical or mental, is intentionally
10Munyakazi also raises a constitutional argument—that the
DHS investigation violated his due process rights because he
could not confront the witnesses. Munyakazi failed to raise this
claim to the BIA, and that failure deprives us of jurisdiction
to consider it. 8 U.S.C. § 1252(d)(1).
22
inflicted on a person.” 8 C.F.R. § 1208.18(a)(1). Evidence of
past torture is relevant under CAT, but “it does not create a
presumption that an applicant will be tortured in the future.”
Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013).
Although Munyakazi is barred from receiving asylum or
withholding of removal, that bar does not preclude the deferral
of his removal under CAT. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a).
In addition, the agency is required to review “all the evidence
relative” to a CAT claim and an adverse credibility finding
“cannot alone preclude protection under the CAT.” Camara v.
Ashcroft, 378 F.3d 361, 372 (4th Cir. 2004).
The agency found that Munyakazi suffered harsh treatment
during his previous incarceration, and that conditions in
Rwandan military facilities may rise to the level of torture.
However, the agency found that genocide perpetrators were held
in civilian, not military, detention facilities and that
conditions in those facilities, while harsh by American
standards, do not amount to torture. 11
11 The agency relied on In re J—E—, 23 I&N Dec. 291 (BIA
2002), in concluding that Rwandan civilian prison authorities
lacked the specific intent to inflict severe physical mental
pain or suffering on civilian detainees. The BIA’s decision in
In re J—E— “requires a CAT claimant to demonstrate that the
state actor who mistreats him desires to cause his severe pain
and suffering, and is not merely negligent nor reckless as to
the risk.” Oxygene v. Lynch, 813 F.3d 541, 548 (4th Cir. 2016).
In Oxygene, we held that the BIA’s interpretation of CAT’s
(Continued)
23
Again, our standard of review mandates that we deny
Munyakazi’s petition for CAT relief because substantial evidence
supports the agency’s findings and nothing in the record compels
the opposite conclusion. The available documentary and
testimonial evidence—including testimony from Munyakazi’s own
witness, Babonampoze—tended to establish that persons held on
state security and terrorism charges were subjected to barbarous
treatment 12 in military facilities but that persons charged with
genocide crimes were held in civilian detention facilities.
Likewise, the available State Department and United Nations
documents indicated that conditions in civilian prisons do not
rise to the level of torture. Munyakazi asserts that his charges
are politically motivated and based on his status as a moderate,
opposition Hutu. Even assuming he is correct, that does not
change the fact that the actual charges pending against
Munyakazi are not political crimes, but genocide crimes, and
that genocide defendants are not held in military facilities. 13
intent requirement is entitled to deference, and we see no error
in its application here.
12For example, Babonampoze testified that he was beaten,
placed in a hole underground while smoke was blown into it, and
burned with fire. On another occasion he was tied to a pillar
outside overnight in the cold.
13Munyakazi also discusses the local Gacaca tribunals—
courts that were created specifically to deal with the multitude
(Continued)
24
Munyakazi did not show that he is a member of the opposition UDF
or that Rwanda is investigating him for opposition or terrorism
activities. The record evidence does not compel the conclusion
that Munyakazi will be held in a military detention facility. To
the contrary, the record amply supports the agency’s finding
that Munyakazi is likely to be held in civilian prison and tried
in civilian courts.
Accordingly, we conclude that substantial evidence supports
the denial of Munyakazi’s request for CAT protection.
IV.
For the foregoing reasons, Munyakazi’s petition for review
is denied.
PETITION DENIED
of genocide cases. Those courts, however, were closed in 2012
and the record does not show that Munyakazi would be before any
Gacaca court.
25
Leopold Munyakazi v. Loretta Lynch
Court: Court of Appeals for the Fourth Circuit
Date filed: 2016-07-11
Citations: 829 F.3d 291
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