                                                                      FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 2, 2010
                     UNITED STATES COURT OF APPEALS
                                                  Elisabeth A. Shumaker
                                                                   Clerk of Court
                             FOR THE TENTH CIRCUIT


    SENYANGE AHMED,

               Petitioner,

    v.                                                  No. 09-9540
                                                    (Petition for Review)
    ERIC H. HOLDER, JR., United States
    Attorney General,

               Respondent.


                             ORDER AND JUDGMENT *


Before BRISCOE, Chief Judge, BALDOCK, and TACHA, Circuit Judges.



         Petitioner Senyange Ahmed seeks review of a Board of Immigration

Appeals (BIA) order affirming an immigration judge’s (IJ) denial of his

applications for asylum, restriction on removal, and relief under the United

Nations Convention Against Torture (CAT). Ahmed concedes that his request for

asylum was filed inexcusably late, and he does not contest that portion of the


*
       After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
BIA’s order. He claims, however, that he is entitled to restriction on removal

because he has demonstrated a likelihood of persecution and torture if he returns

to his native Uganda. 1 Because the record does not compel that conclusion, we

exercise our jurisdiction under 8 U.S.C. § 1252(a) to deny the petition.

                                   Background

      Ahmed came to the United States on a non-immigrant visa in 1995. In

2004, the government discovered he had overstayed his visa and initiated removal

proceedings against him. Conceding that he was removable, Ahmed filed an

application for asylum and restriction on removal, claiming he had been

persecuted by the Ugandan government. At a hearing before the IJ, Ahmed

testified that his family was affiliated with the Uganda People’s Congress (UPC),

a political party opposed to the ruling National Resistance Movement (NRM), led

by President Yoweri Museveni. He testified that his father was actively involved

with UPC throughout his childhood, and that both he and his older brother, Moses




1
       Ahmed has been removed from the United States and is currently in the
Netherlands. Because of the collateral consequences arising from the removal
order, however, which include barring him from reentering the United States for
several years, his petition for review is not moot. See Tapia Garcia v. INS,
237 F.3d 1216, 1217 (10th Cir. 2001) (holding that deportation does not foreclose
judicial review so long as petition continues to present a case or controversy);
Gomez-Zuluaga v. Att’y Gen., 527 F.3d 330, 339 n.4 (3d Cir. 2008) (“Because a
final order of removal creates sufficient collateral consequences, Petitioner’s
removal does not moot her petition for review.”(internal quotation marks
omitted)).

                                        -2-
Ddamulira, were youth party organizers. 2 Ahmed claims that in the 1990s, every

member of his immediate family was persecuted on account of the family’s

connection to the UPC.

      His brother Moses was allegedly arrested and tortured by members of the

NRM in 1992. Moses escaped his captors and fled to England, where he was

ultimately granted an indefinite right to remain. Testifying at Ahmed’s hearing

by phone, Moses claimed that he had been a spy for the UPC and that he became

romantically involved with the daughter of an NRM commander in order to gather

information for the UPC. When his girlfriend became pregnant, her father

allegedly discovered the affair and had Moses arrested. Moses testified he was

detained and tortured for several days before making his escape to England. He

never returned to Uganda.

      Ahmed testified that the NRM arrested him on three separate occasions,

beginning in 1992, shortly after his brother’s escape. Although he now claims he

was arrested and tortured on account of his politics, at his hearing, Ahmed

testified that the NRM arrested him the first time in order to find his brother:

      [O]ne time they arrested me when I was coming from my soccer
      practice due to the fact that they were looking for my brother. He
      had got a commander’s daughter pregnant, so they wanted to know
      where he [was]. So, they arrested me, they tortured me.

2
        Ahmed does not share the same last name as his brother and sister, both of
whom use Ddamulira. This matter triggered credibility concerns for the IJ, but it
is irrelevant to our disposition because, as noted below, the BIA affirmed the IJ’s
decision without resolving the credibility issue.

                                         -3-
R. at 207; see also id. at 208 (Ahmed testifying, “[t]hey told me they were

looking for my brother”). Ahmed claims he was held for about a week, and

although he was severely beaten, he did not disclose that his brother was in

England. NRM authorities arrested him a second time in 1993. Ahmed testified

that he was with his older sister, Shamim Ddalumira, who was also arrested. The

NRM picked them up this time because “they were still looking for [his] brother,

and then due to the ties of the family to the UPC Party.” Id. at 211. He went on

to clarify, however, that the NRM’s motivation for the second arrest was to find

Moses:

      So that’s why we [were] arrested and tortured. They [were] looking
      for my brother. I couldn’t tell where my brother was, so we [were]
      taking up all the beating for my brother and the torture, everything.

Id. When asked specifically why the NRM tortured him, Ahmed replied that they

wanted him to confess his brother’s whereabouts. They wanted him “[t]o tell

them where he was.” Id. at 212. The third and final arrest allegedly occurred

between 1994 and 1995. At the hearing, Ahmed testified that this arrest was

motivated by the “[s]ame thing, my brother. And then the ties to the UPC Party.”

Id. at 217. Shortly after being released from custody after this arrest, Ahmed fled

to the United States.

      Testifying by phone from her home in Canada, Ahmed’s sister, Shamim,

stated that she too fled Uganda out of fear of persecution by the NRM. She

corroborated Ahmed’s story of their joint arrest, although she believed it occurred

                                         -4-
sometime in 1993 or 1994. Shamim testified that during her detention she “was

raped and tortured because of [her] parents’ involvement in their political party,

because they were members of the UPC.” Id. at 250. She claimed she was

ultimately forced to flee in 1999 after NRM authorities discovered she was

harboring a UPC member in her house. Shamim has never returned to Uganda

and is now a Canadian citizen. All three siblings also testified that the Ugandan

army burned down their childhood home in 1994 and killed their parents in 2000.

They testified it would not be safe for Ahmed to return to Uganda because he

would be viewed as a traitor to the current regime.

      IJ and BIA Decisions

      At the conclusion of the hearing, the IJ delivered an oral decision rejecting

Ahmed’s petition based on an adverse credibility finding and his conclusion that

Ahmed’s story, even if true, did not establish persecution based on a protected

ground. See 8 U.S.C. § 1231(b)(3) (protecting aliens from persecution based on

“race, religion, nationality, membership in a particular social group, or political

opinion”). The IJ explained that according to Ahmed’s own testimony, he was

arrested and harmed by the Ugandan army because “[t]he government was looking

for his brother whom they regarded as a political enemy.” R. at 115. Thus, the IJ

reasoned, Ahmed was not mistreated because of his political opinion or

membership in his family, and therefore he was not entitled to restriction on




                                          -5-
removal under § 1231(b)(3). The IJ denied relief under the CAT without

additional reasoning.

      The BIA affirmed the IJ’s decision, concluding Ahmed failed to establish

past persecution or a likelihood of future persecution based on a protected

ground. 3 The BIA acknowledged that family relationship or kinship ties can,

under certain circumstances, form the basis of a particular-social-group claim.

But it declined to so categorize Ahmed’s claim because, by his own admission,

his mistreatment was motivated by the Ugandan government’s desire to find his

brother, and not because of his relationship to his brother.

      [T]he evidence does not show that the respondent was detained and
      beaten as a form of punishment because of his relationship to his
      brother. Rather, it supports the conclusion that the respondent was
      detained and beaten because the authorities wanted information
      regarding the respondent’s brother.

R. at 34. The BIA emphasized that in order to obtain relief, an alien must provide

some evidence, beyond mere speculation, that his persecution was tied to a

protected ground. And it rejected Ahmed’s speculation that his ties to the UPC

party motivated his persecutors, noting that he did not testify he was beaten for

this reason. “Rather . . ., the respondent testified that he was beaten because the

authorities wanted to know the whereabouts of his brother.” Id. The BIA also



3
      The BIA declined to address Ahmed’s challenge to the IJ’s adverse
credibility finding, concluding the issue was not dispositive because his story,
even if true, did not entitle him to the relief requested.

                                         -6-
affirmed the IJ’s decision to deny CAT relief, because Ahmed “presented no

arguments on appeal that would cause [it] to reverse” this determination. Id.

      Ahmed claims the BIA committed reversible error in requiring him to

demonstrate that his persecution was a form of punishment, arguing that “[n]either

the statute nor regulations governing restriction on removal mention (let alone

require) any intent to inflict ‘punishment’ as an element.” Pet’r Op. Br. at 20.

He also claims the BIA failed to properly consider his claim for relief under the

CAT and argues generally that the BIA’s decision was not sufficiently detailed to

allow appellate review.

                                     Discussion

      Standard of Review

      “To qualify for restriction on removal, an alien must demonstrate that his

life or freedom would be threatened in the proposed country of removal because

of his race, religion, nationality, membership in a particular social group, or

political opinion.” Sarr v. Gonzales, 474 F.3d 783, 788 (10th Cir. 2007) (internal

quotation marks and brackets omitted). If an applicant can demonstrate past

persecution based on a protected ground, it is presumed that his life or freedom

would be threatened in the future on the same basis. Niang v. Gonzales, 422 F.3d

1187, 1195 (10th Cir. 2005). By contrast, an alien seeking relief under the CAT

need not show that the persecution will occur on account of a statutorily protected

ground. But he must show that he has a greater chance of being persecuted than

                                         -7-
not, and that “the persecution would be so severe that it would rise to the level of

torture.” Id. at 1196.

      Because the BIA issued a reasoned, albeit short, opinion in this case, we

limit our review to the reasons expressed therein. We may, however, consult the

IJ’s opinion to the extent it enhances our understanding of the BIA’s reasoning.

See Uanreroro v. Gonzales, 443 F.3d 1197, 1203-04 (10th Cir. 2006) (explaining

different methods of BIA decision making and implications for judicial review).

We review the BIA’s factual findings for substantial evidence, rejecting them

only if “the record demonstrates that any reasonable adjudicator would be

compelled to conclude to the contrary.” Sarr, 474 F.3d at 788-89 (internal

quotation marks omitted). We review legal determinations de novo.

Herrera-Castillo v. Holder, 573 F.3d 1004, 1007 (10th Cir. 2009), petition for

cert. filed (U.S. Jan. 25, 2010) (No. 09-9834).

      Restriction on Removal

      In this case, the BIA made a factual determination that Ahmed was arrested

and beaten, not because of his political opinion or membership in his family, but

because the authorities sought information concerning his brother. To reverse

this finding, we would have to say that the evidence not only supports another

conclusion, but compels it. INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

Ahmed argues that the evidence supports a reversal, even ignoring his own

testimony and the attendant credibility issues. He points out that both his brother

                                         -8-
and sister testified that his family was considered a political enemy, and he argues

this fact is further bolstered by the burning of his family’s home and the murder

of his parents. But the BIA made no findings concerning his family’s political

views or the extent to which those views caused them to suffer. Rather, it found,

based on Ahmed’s own testimony, that his mistreatment stemmed from his refusal

to divulge his brother’s whereabouts, which is neither a political belief nor an

immutable characteristic. We conclude that substantial evidence supports this

determination. That is, we agree that Ahmed’s own testimony was fatal to his

claim. Even if his ties to the UPC played some part in his arrest, Ahmed

consistently testified that the beatings and prolonged detention occurred because

of his refusal to tell the authorities where his brother was. Furthermore, even if

his brother was wanted for political reasons–a finding the evidence does not

compel–Ahmed has cited no authority that would protect him from removal based

on past mistreatment for failing to divulge his brother’s whereabouts.

      We also reject Ahmed’s argument that the BIA wrongly required him to

show that his mistreatment constituted a “form of punishment.” Read in context

and alongside the IJ’s parallel reasoning, these words added no additional

requirement to Ahmed’s already heavy burden. Restriction on removal requires

an alien to show that his “life or freedom would be threatened . . . because of

[his] . . . membership in a particular social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A) (emphasis added). In our view, the BIA’s denial of relief based

                                          -9-
on Ahmed’s failure to show he was mistreated “as a form of punishment,” simply

reflects the statutory requirement that the alien’s mistreatment be tied to a

protected ground.

      Relief under the CAT

      Finally, we decline Ahmed’s invitation to revisit his claim for relief under

the CAT. He argues the BIA erred in rejecting this claim because protection

under the CAT does not depend on the torture occurring on account of a

statutorily protected ground. This may be so, but Ahmed’s failure to make this

point to the BIA precludes our consideration of it.

      We have recognized that neglecting to take an appeal to the BIA
      constitutes a failure to exhaust administrative remedies as to any
      issue that could have been raised, negating the jurisdiction necessary
      for subsequent judicial review. Accordingly, we have jurisdiction
      only over those claims that were presented to the BIA and were
      properly appealed to this court . . . .

Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) (citation and

internal quotation marks omitted). A review of the administrative record reveals

that Ahmed made no argument specific to his CAT claim in his brief to the BIA.

The BIA therefore upheld the IJ’s denial of that claim, and we are not at liberty to

overturn that decision.




                                         -10-
                                Conclusion

     The petition for review is DENIED. Ahmed’s motion to proceed in forma

pauperis is GRANTED.


                                              Entered for the Court



                                              Mary Beck Briscoe
                                              Chief Judge




                                   -11-
