                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 _____________

                                      No. 12-4378
                                     _____________

                           HILAIRE DIALLO KARANGWA,
                                     Petitioner

                                             v.

           ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,
                              Respondent
                                     _____________

                           On Petition for Review of an Order
                          of the Board of Immigration Appeals
                              (Agency No. A098-866-601)
                        Immigration Judge: Charles M. Honeyman
                                    ______________

                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                   March 22, 2016
                                  ______________

      Before: GREENAWAY, JR., VANASKIE, and SHWARTZ, Circuit Judges.

                              (Opinion Filed: May 20, 2016)
                                    ______________

                                        OPINION*
                                     ______________

VANASKIE, Circuit Judge.

       Petitioner Hilaire Diallo Karangwa seeks review of an order of the Board of

       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his

petition for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). Because we find that Karangwa has not met the high burden

of proving that the BIA’s determination is unsupported by substantial evidence, we will

deny his petition for review.

                                              I.

          Karangwa is a native and citizen of Rwanda who considers himself of Hutu

ethnicity, like his father, although his mother is of Tutsi ethnicity. In 1994, around the

start of the Rwandan genocide, Karangwa and his mother were beaten by members of the

Interahamwe, one of the groups responsible for the genocide, who threatened to kill them

because they believed Karangwa and his mother to be Tutsi. Karangwa was eventually

identified as Hutu and, along with his mother, was permitted to return home. Karangwa

remained in Rwanda for several more years and did not allege any further incidents of

physical harm, although he claimed that he was subject to questioning during the

genocide and that many of his neighbors were later taken into custody for genocide and

killed.

          In 2000, Karangwa came to the United States to study at La Roche College. He

graduated in 2004, but the Department of Homeland Security (“DHS”) permitted him to

stay in the country to participate in an Optional Practical Training program for non-

immigrant students until June of 2005.



                                              2
           Also in mid-2005, Karangwa discovered that his name had been mentioned in

connection with a murder that took place during the Rwandan genocide and that two of

his brothers were being summoned before the Rwandan Gacaca court system on

allegations that they also were involved with the murder.1 After learning about the

charges and hearing about other Hutus who were falsely accused and prosecuted for

crimes in the Gacaca courts, Karangwa decided to remain in the United States. He filed

an asylum application with DHS in August of 2005 and his application was referred to

the immigration court for adjudication.

       In May of 2006, DHS began removal proceedings against Karangwa on the

grounds that he was removable under 8 U.S.C. § 1227(a)(1)(C)(i) as an alien who failed

to comply with the conditions of his non-immigrant status. He conceded his

removability, but renewed his application for asylum and requested withholding of

removal and CAT protection because of false accusations that he was involved with the

1994 genocide and the possibility that he would be charged for murder in the Gacaca

court system. Karangwa argued that persecution would be inflicted upon him because he

was Hutu and because there was a widespread dislike for his family because of its status

and wealth. Karangwa’s counsel advised the IJ that the focus of the application was a

claim of fear of future persecution and torture. As an alternative to his claims for relief

       1
         The Gacaca courts are community-based tribunals formed to adjudicate charges
arising from the 1994 genocide. One of Karangwa’s brothers, Pierre, was arrested and
spent time in prison as a result of having been charged with participating in the genocide.
Both brothers were eventually exonerated and have not been called back to the Gacaca
courts, although Karangwa claims that they fear being charged again.
                                              3
and protection against torture, Karangwa requested that he be afforded the right of

voluntary departure instead of removal.

      At the evidentiary hearing held by the IJ on January 7, 2010, Karangwa submitted

evidence that the Gacaca court system was unfair and was sometimes misused for

personal grudges. He also submitted evidence that the system did not allow defendants to

have lawyers and often led to lengthy pre-trial detentions under harsh and abusive

conditions. Karangwa also claimed that shortly before his immigration hearing his

mother and sister informed him that he was still being threatened with prosecution if he

returned to Rwanda. The only documentary evidence of threatened prosecution that he

submitted, however, were emails from siblings and family in Rwanda no more recent

than October of 2008. The emails did not provide any detailed information about threats

of prosecution. In April of 2010, the IJ denied Karangwa’s application for asylum,

withholding of removal, and CAT protection and ordered him removed to Rwanda. The

IJ did not address Karangwa’s request for voluntary departure.

      Karangwa appealed to the BIA, which ultimately dismissed his appeal, but

remanded the matter to the IJ for further proceedings regarding Karangwa’s request for

voluntary departure.2 In its opinion, the BIA determined that: (1) Karangwa’s one

allegation of past physical harm was insufficient to meet the burden for showing past


      2
        In May of 2014, Karangwa filed a motion with the BIA to reopen his claim based
on incidents involving his brothers in Rwanda and withdrew his application for voluntary
departure. In July of 2015, the BIA denied Karangwa’s motion to reopen. Karangwa did
not appeal that decision and it is not before this Court.
                                               4
persecution; (2) there was no clear error in the IJ’s finding that Karangwa had not met the

burden of showing that he faces a current threat of prosecution in the Gacaca court

system and there was no objective, reasonable basis for his fear of future persecution; and

(3) there was no clear error in the IJ’s finding that Karangwa did not meet his burden of

proving that he would more likely than not be tortured upon his return to Rwanda for the

purposes of CAT protection.

                                             II.

       The BIA had jurisdiction over this action under 8 C.F.R. §§ 1003.1(b) and

1240.15. We have jurisdiction to review final decisions of the BIA under 8 U.S.C. §

1252(a)(5). Our review, however, is restricted to the administrative record. 8 U.S.C. §

1252(b)(4)(A). We review the determinations of both the IJ and the BIA where, as here,

the BIA not only affirms the IJ’s conclusions, but also adds its own explication of its

ultimate findings. See Camara v. Att’y Gen., 580 F.3d 196, 201 (3d Cir. 2009). We will

affirm those determinations unless the evidence compels us to conclude otherwise. See 8

U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

                                            III.

       In support of his petition for review, Karangwa puts forth the following

arguments: (1) the BIA erred in affirming the IJ’s determination that Karangwa did not

meet his burden for showing past persecution; (2) the BIA erred by affirming the IJ’s

finding that Karangwa did not meet the burden of showing a well-founded fear of future

persecution; and (3) the BIA erred in affirming the IJ’s finding that Karangwa had not

                                             5
met the burden of proof for obtaining protection under the CAT. We will address each

argument in turn.

                                              A.

       One basis for securing asylum is to show past persecution because of the asylum

applicant’s “race, religion, nationality, membership in a particular social group, or

political opinion.” See 8 U.S.C. § 1101(a)(42); In re H-, 21 I. & N. Dec. 337, 339 (BIA

1996) (“Both this Board and the federal courts have recognized past persecution as a

basis for granting asylum.”). Persecution is defined as “threats to life, confinement,

torture, and economic restrictions so severe that they constitute a real threat to life or

freedom.” Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (citations omitted).

       Karangwa’s claim for past persecution relies on analogizing his case to In re H-.

In that case, the applicant had been a native of Somalia and a member of the Marehan

subclan. The BIA found that the applicant had suffered past persecution after crediting

findings that his father and brother had been murdered, his family home had been

targeted, and the applicant himself had been captured, detained, and severely beaten

because of his membership in the Marehan clan. 21 I. & N. Dec. at 345–46. The BIA

noted that information provided by the Department of State supported the conclusion that

there was “continuing insecurity and intraclan fighting” in Somalia and that clans and

subclans were left “without the restraints that would serve to protect human rights.” Id.

(citations omitted). Karangwa argues that his claim for past persecution should also be

recognized because, similarly, he is a member of a persecuted tribe, the Hutus, had family

                                               6
members killed during the genocide, and he and his mother were beaten and forced into

hiding during the genocide.

       The facts of Karangwa’s case, however, do not compel a finding of past

persecution, which would be required to overcome the substantial deference owed to the

BIA here. Unlike the applicant in In re H-, who was forced to leave the country for his

safety, Karangwa continued to live in Rwanda for several years after the incidents upon

which he bases his claim for past persecution and did not suffer any further harm. Also

unlike the situation in In re H-, the only incident in which Karangwa claims that he was

personally persecuted was based on a belief that Karangwa was Tutsi, not on the basis

that he was Hutu. Furthermore, Karangwa’s counsel had notified the IJ that fear of future

persecution, not past persecution, was the basis of Karangwa’s claim for asylum. Thus,

the BIA’s determination that Karangwa has not met the burden of showing past

persecution is supported by substantial evidence.

                                        B.

       Another basis for securing asylum is to show a fear of future persecution. In this

context, we must uphold the BIA’s determination if it is “supported by reasonable,

substantial, and probative evidence on the record considered as a whole.” Elias-

Zacarias, 502 U.S. at 481 (citation omitted). The petitioner has the burden to show that

“the evidence presented . . . was such that a reasonable factfinder would have to conclude

that the requisite fear of persecution existed.” Id. The petitioner additionally must show

that the fear is “subjectively genuine and objectively reasonable.” Chavarria v.

                                             7
Gonzalez, 446 F.3d 508, 520 (3d Cir. 2006). Nonetheless, an applicant’s “fear may be

well-founded even if there is only a slight, though discernible, chance of persecution.”

Diallo v. INS, 232 F.3d 279, 284 (3d Cir. 2002) (citing INS v. Cardoza-Fonseca, 480 U.S.

421, 431 (1987).

       Karangwa argues that that the IJ and the BIA improperly weighed the threats

against him and misapplied the law regarding the standard of proof to demonstrate a well-

founded fear of future persecution. Furthermore, he argues that the IJ and the BIA

improperly weighed evidence of the risk that he would be persecuted because of his

ethnicity, his family, and his family’s wealth. He cites to Ninth Circuit precedent in

Himri v. Ashcroft, 378 F.3d 932, 936 (9th Cir. 2004), to say that “an individual with even

a ten percent (10%) likelihood of being persecuted can establish a well-founded fear of

persecution.” (Pet’r Br. at 20.) Karangwa argues that

       no reasonable person could conclude given the fact that both of [his]
       brothers were charged and tried in the Gacaca courts and at least one
       brother was arrested and imprisoned on five different occasions, that there
       is not at least a ten percent (10%) chance that [he] will be arrested,
       imprisoned and charged on account of either his Hutu ethnicity. . . , his
       family, his family’s wealth or a combination thereof.

(Pet’r Br. at 22.)

       The facts of Karangwa’s case, however, do not compel a finding that there is at

least a ten percent chance that he will be prosecuted upon returning to Rwanda. The

BIA’s opinion shows that it considered the record as a whole when it affirmed the IJ’s

determination that Karangwa did not show an objective basis for a well-founded fear of


                                             8
future persecution. The BIA specifically noted that both of Karangwa’s brothers were

exonerated through the Gacaca court system and have not been re-charged. The BIA also

considered it significant that since 2008 there has been no evidence that prosecutors have

any interest in Karangwa. The BIA thus had ample evidentiary support for the rational

conclusion that there is no objective basis for Karangwa’s fear that he will face

prosecution in the Gacaca courts if he returns to Rwanda. Accordingly, Karangwa has

not carried his substantial burden of showing that the evidence compels the conclusion

that he is entitled to asylum.

                                            C.

       Finally, Karangwa’s arguments that the BIA erred in determining that he had not

proven his CAT claim must fail. The standard for protection under the CAT is

heightened as compared to the well-founded fear standard for asylum. See Yu v. Att’y

Gen., 513 F.3d 346, 349 (3d Cir. 2008) (“Since the threshold for asylum is lower than for

protection under the withholding of removal or CAT provisions, rejection of the

petitioners’ asylum claims necessarily requires that their CAT and withholding claims be

rejected as well.”). Because Karangwa was unable to meet the burden of proof for

overturning the BIA’s determination on his asylum claim, he necessarily is unable to

meet the burden of proof for overturning the BIA’s decision regarding his CAT claim.

                                            IV.

       For the aforementioned reasons, we will deny Karangwa’s petition for review.



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