Kibinda v. Attorney General of U.S.

• Citation: 477 F.3d 113
• Decision Date: 20 February 2007
• Docket Number: No. 05-4237.,05-4237.
• Parties: Valerio Fortunato Tuali KIBINDA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

477 F.3d 113

Valerio Fortunato Tuali KIBINDA, Petitioner v. ATTORNEY GENERAL OF the UNITED STATES of America, Respondent.

No. 05-4237.

United States Court of Appeals, Third Circuit.

Argued January 8, 2007.

Filed February 20, 2007.

Hyung P. Steele, (Argued), Pepper Hamilton, Philadelphia, PA, Michael S. Hino, (Argued), Pepper Hamilton, Berwyn, PA, Attorneys for Petitioner.

Richard M. Evans, Paul Fiorino, Susan K. Houser, (Argued), United States Department of Justice, Office of Immigration Litigation, Washington, DC, Attorneys for Respondent.

Before McKEE, AMBRO and FISHER, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

Valerio Kibinda seeks review of an order of the Board of Immigration Appeals ("BIA") affirming the denial of his request for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction to review the petition pursuant to 8 U.S.C. § 1252(a) and will deny the petition.

I. BACKGROUND

Petitioner Valerio Kibinda, a native and citizen of Angola, is from Cabinda, an oil-rich area administered as an exclave of Angola since Cabindan and Angolan liberation from Portuguese rule in 1975. Many Cabindans believe that their region should be autonomous but the Angolan government strongly suppresses any such notion. A full-scale civil war between a Cabindan separatist group, the "Frente para a Libertação do Enclave de Cabinda" ("Front for the Liberation of the Enclave of Cabinda — FLEC"), and Angolan government forces has been ongoing since 1993.¹ The United States Department of State, an ad-hoc commission of the United Nations, and various humanitarian organizations report that both Angolan government forces and FLEC have committed human rights abuses against their perceived enemies in the course of this bloody dispute.

At age sixteen, Kibinda was identified by the Angolan government as a talented student and sent, allegedly against his will, to Cuba for five years of training at a military institute. After that training was complete, Kibinda was inducted into the Angolan army, again allegedly against his will, and transferred to Angolan army headquarters in the capital city of Luanda. By this time, the Angolan army was fighting rebel forces within Angola, primarily the "União Nacional para a Independência Total de Angola" ("National Union for the Total Independence of Angola — UNITA"), but also FLEC separatist rebels in Cabinda.

During the time Kibinda was stationed in Luanda, an incident occurred that forms part of the basis of Kibinda's claim of past persecution in this case. An order was issued by the Angolan army requiring that all officers remain inside the Luandan military complex due to a violent protest that was being held in the city by the Bakongo ethnic group. Kibinda was discovered returning to his barracks from an overnight stay outside the military complex, which was in violation of the order, and was detained for five days as a result. Describing this incident in his original asylum application, Kibinda stated that he had been arrested and tortured for five days for participating in the Bakongo protest.

However, in an addendum to his affidavit, submitted the day before his immigration hearing, Kibinda retracted this claim.² He reiterated that he was detained for five days, but the only abuse he described was an incident in which a guard threw an unidentified heavy object into a cell Kibinda shared with six other soldiers. That object hit Kibinda in the jawbone, causing an injury requiring seven stitches. He made no further allegations of abuse or torture in this addendum and attributed the "incorrect" statements in his original affidavit to an error in translation.

No further repercussions occurred after the five-day detention, and four months later Kibinda was selected for officer training. He graduated from that training as a first lieutenant and was shortly thereafter selected along with twenty five other officers for even further military training in Rio de Janeiro, Brazil. While in Brazil, Kibinda studied war tactics, earned an accounting degree from a Brazilian university, and met and married a Brazilian citizen. In the course of the training program, Kibinda was assigned to monitor a younger Cabindan cadet. In 2000, at the end of the program, this cadet told Kibinda of his plans to flee to the Netherlands and seek asylum there. The cadet gave Kibinda a copy of a FLEC membership card that had previously belonged to Kibinda's cousin, telling Kibinda that it would help him find support and assistance from fellow Cabindans in other countries. Kibinda testified that this FLEC card was discovered by an officer with whom he shared living quarters and turned over to his superiors.

Kibinda took the Cabindan cadet to the airport under the pretense that the cadet was returning to Angola as expected. Instead, the cadet fled to the Netherlands as planned. When the cadet failed to report back to army headquarters in Angola, Kibinda was called in for questioning by his commander. Kibinda alleges that he was told he would be held accountable if the cadet did not return to Angola. After this confrontation, Kibinda decided to leave Brazil and flew to the United States on a valid tourist visa, apparently with the intention of traveling on to Canada to seek asylum there. He never went to Canada, however, but returned two months later to Brazil to collect back pay of $6,000.00, which was half of what he was owed by the Angolan army. While back in Brazil, Kibinda was promoted to the rank of lieutenant and ordered back to Angola, where he was told he could collect the remainder of his back pay. Suspecting that the promotion was merely a ruse to "entice" him back to Angola for punishment, he returned to the United States on his still-valid tourist visa. His wife joined him on December 23, 2001. On January 10, 2002, Kibinda, acting pro se, filed a timely asylum application.

At Kibinda's hearing, the immigration judge ("IJ") found that an adverse credibility determination was not warranted, and that Kibinda had a genuine subjective fear of persecution. However, he found Kibinda's subjective fear of persecution was objectively unreasonable in light of the record. Specifically, he pointed to the investment made in Kibinda by the Angolan government, and found that Kibinda's record of promotion within the army suggested that he was trusted and valued by the army and thus unlikely to be persecuted. In addition, he cited the general rule that fear of conscription and punishment for desertion cannot form the basis of a cognizable asylum claim, and found that Kibinda failed to qualify for an exception to that rule.

Consequently, the IJ concluded that Kibinda's fear of persecution was not "well founded" and denied his request for asylum.³ Because Kibinda had not met the lower standard of proof for establishing an asylum claim, the IJ concluded that he necessarily did not qualify for withholding of removal. As for the CAT claim, the IJ found that the evidence in the record did not establish that Kibinda was likely to be tortured if removed to Angola. Kibinda appealed the IJ's decision to the BIA and submitted a motion to admit new evidence on appeal, which was properly denied.⁴ The BIA affirmed the decision of the IJ, adopting its findings and reasoning. Kibinda filed a timely petition for review.

II. DISCUSSION

In this case, because the BIA adopted the reasoning of the IJ in its decision, we review the decision of the IJ. Abdulai v. Ashcroft, 239 F.3d 542, 549 n. 2 (3d Cir.2001). We must uphold the IJ's findings if there is substantial evidence in the record to support them, which is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.1998) (citation omitted). Under this deferential standard, the IJ's "finding must be upheld unless the evidence not only supports a contrary conclusion, but compels it." Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir.2001) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)).

A. Asylum

Kibinda first argues that there is not substantial evidence for the IJ's conclusion that he was not statutorily eligible for asylum. To be eligible by statute, an asylum applicant must demonstrate refugee status by showing past persecution or a well-founded fear of future persecution. 8 U.S.C. § 1158(b)(1). In order to establish past or future persecution, an applicant must "show past or potential harm rising to the level of persecution on account of a statutorily enumerated ground that is committed by the government or by forces the government is unable or unwilling to control." Fiadjoe v. Att'y Gen., 411 F.3d 135, 160 (3d Cir.2005) (citation omitted). A showing of past persecution gives rise to a rebuttable presumption of a well-founded fear of future persecution. 8 C.F.R. § 1208.13(b)(1).

1. Past Persecution

At the outset, we dismiss out of hand Kibinda's claim of past persecution in the form of "torture" during his five-day detention by the Angolan army. Kibinda argues that the IJ failed to "develop" the torture claim at Kibinda's hearing. However, as already stated, supra, Kibinda unequivocally retracted this claim in an amendment to his asylum application, describing it as a mistake attributable to an error in translation. In addition, Kibinda swore at his immigration hearing that the entire substance of his application for asylum, as amended, was true and correct. It is self evident that an IJ has no obligation (or authority, for that matter) to reach back into the record to revive and "develop" a claim that a petitioner has explicitly disavowed. Thus, we reject any attempts by Kibinda to now reassert a claim of "torture."

Even so, past persecution need not rise to the level of torture to be grounds for asylum. In Fatin v. INS, 12 F.3d 1233 (3d Cir.1993), we accepted the BIA's definition of...