Professional Documents
Culture Documents
No. 15-1607
Argued:
Decided:
PER CURIAM:
Francois
Lukunku-Tshibangu,
citizen
of
the
Democratic
Lukunku-
be
tortured
substantial
by
evidence
the
Congolese
supports
the
armed
BIAs
forces.
decision,
Because
we
deny
Lukunku-Tshibangus petition.
I.
Lukunku-Tshibangu entered the United States at Washington
Dulles International Airport on November 6, 2010.
On December
country
without
valid
1182(a)(7)(A)(i)(I).
entry
documents.
See
U.S.C.
of
removal,
and
CAT
protection.
At
his
merits
He
training,
and
was
J.A.
467.
identification.
See
Lukunku-Tshibangu
performed
not
traffic
issued
Over
the
control
any
next
at
occasionally
wore
uniform,
and
military
ten
the
years,
Congolese
He carried a
received
salary.
In
particular,
he
left
the
FARDC
in
2007
for
When
States
governments
arranged
for
his
ticket
and
visa.
During
his
detention,
Lukunku-Tshibangu
met
with
Alain
Kelenga,
punish
him
for
failing
to
attend
the
anti-terrorism
FARDC
out
soldiers
would
harm
him
of
jealousy
that
he
was
selected to attend the training and anger that he did not do so.
When asked whether the FARDC would perceive his failure to
attend the training as dissidence, Lukunku-Tshibangu repeatedly
stated that he did not know.
Similarly,
471.
He
explained
that
by
suffering,
he
meant
the
Thats
Lukunku-Tshibangu confirmed
who
been
punished
after
failing
to
complete
The BIA
case
for
in
light
of
our
intervening
must
review
for
clear
error
rather
than
de
novo.
See
BIA
then
remanded
the
case
to
the
IJ
to
make
specific
were
returned
to
the
the
FARDC
would
further
found
Tshibangus
that
absence
the
from
FARDC
the
likely
J.A. 83.
knew
training,
of
viewed
The
Lukunku-
him
as
specifically
concluded,
the
targets
FARDC
perceived
would
likely
opponents.
Thus,
torture
kill
or
the
IJ
Lukunku-
of
the
deplorable
conditions
in
Congolese
prisons.
of
attending
torture
with
him
the
for
impunity,
anti-terrorism
his
training
disloyalty,
torturing
and
as
and
FARDC
killing
would
soldiers
people
arbitrarily,
especially
those
who
are
suspected
of
dissent.
J.A. 84.
On
appeal,
the
BIA
found
that
the
IJ
clearly
erred
in
decision. 2
II.
To qualify for protection under the CAT, an applicant bears
the burden of proving that it is more likely than not that he
or she would be tortured if removed to the proposed country of
removal.
form
of
8 C.F.R. 1208.16(c)(2).
cruel
inhuman
on
official.
Id. 1208.18(a)(1)-(2).
an
person
by
treatment
inflicted
When
and
application
Torture is an extreme
or
with
for
CAT
that
the
is
consent
protection
intentionally
of
rests
public
on
of
his
23
assessing
I.
&
N.
whether
Dec.
an
912,
918
applicant
&
has
n.4
met
(A.G.
this
In re
2006).
burden,
In
all
including
evidence
of
past
torture,
evidence
of
8 C.F.R. 1208.16(c)(3).
review
substantial
the
BIAs
evidence.
decision
to
Suarez-Valenzuela
deny
v.
CAT
relief
Holder,
714
for
F.3d
findings
conclusive
of
fact
are
unless
any
reasonable
III.
A.
Lukunku-Tshibangu contends that if he is removed to the
DRC, his FARDC superiors will torture him as punishment for his
8
failure
to
attend
the
anti-terrorism
training.
This
find that Lukunku-Tshibangu has not shown that these events are
more likely than not to occur.
As the BIA observed, the evidence does not establish that
the FARDC would recognize and identify Lukunku-Tshibangu upon
his
return
to
the
DRC.
Lukunku-Tshibangu
did
not
have
a
He
abroad.
Furthermore,
there
is
no
evidence
that
the
United States for over five years and there is no evidence that
FARDC members have attempted to contact him, undermining the
IJs finding that the FARDC is anticipating Lukunku-Tshibangus
return and intending to apprehend him.
The evidence also does not establish that the FARDC would
view
Lukunku-Tshibangus
absence
from
the
anti-terrorism
immigration
attending
the
officials
training,
and
therefore
Lukunku-Tshibangu
prevented
did
not
offer
from
an
J.A. 471.
Furthermore,
with
previously
them,
left
repercussion.
sometimes
the
FARDC
not,
for
J.A.
467,
nearly
and
three
that
years
he
had
without
J.A. 84.
The IJ asked
10
perceived as opposition to the government, to which LukunkuTshibangu replied I dont know; [t]hey can think any way they
want to; and I have no idea because I cannot think [in] their
place.
J.A. 485-86.
officers
had
been
punished
as
dissidents
after
failing
to
J.A. 486.
Finally, the evidence does not demonstrate that LukunkuTshibangu faces harm that amounts to torture upon his return to
the DRC.
At
he
no
point
treatment;
did
instead,
articulate
he
fear
repeatedly
of
stated
cruel
that
J.A. 471.
and
he
inhuman
wanted
to
The IJs
Report,
arbitrarily
which
killing
described
and
state
detaining
civilians
toward
citizens
does
not
F.3d
protection
440,
449
where
(4th
Cir.
applicant
and
forces
as
specifically
However, generalized
establish
an
individuals
2011)
failed
11
security
(upholding
to
denial
establish
he
of
would
CAT
be
targeted
by
gangs
more
than
any
other
citizens);
Singh
v.
Holder, 699 F.3d 321, 334-35 & n.16 (4th Cir. 2012) (upholding
denial
of
CAT
protection
where
country
reports
identified
widespread abuse but did not show that petitioner himself would
more likely than not be tortured).
evidence
does
not
establish
that
Lukunku-Tshibangu
would
be
viewed as a dissident. 4
On
appeal,
Lukunku-Tshibangu
does
not
point
to
record
to
find
that
former
supervisors
and
fellow
uniform
does
not
take
away
from
Mr.
Lukunku-
because
he
disagreed
with
them.
Id.
at
17.
12
ensure
that
judgment.
1999).
substantial
evidence
It is instead
supports
the
BIAs
the
reasons
discussed
above,
we
find
that
B.
Lukunku-Tshibangu also contends that fellow FARDC soldiers
will torture him out of jealousy that he was chosen to attend
the training in the United States and anger that he failed to do
so.
Lukunku-
474.
However,
Lukunku-Tshibangu
does
not
specifically
identify any soldiers who would want to harm him or suggest that
he or other delegates were threatened by jealous soldiers when
they were first selected to come to the United States.
Instead,
whom
he
worked
five
years
ago
continue
to
harbor
suppositions.
13
IV.
The
record
does
not
compel
us
to
find
that
Lukunku-
supports the BIAs denial of CAT protection and deny LukunkuTshibangus petition for review.
PETITION DENIED
14