                              UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 08-2398


CALLIXTE JEAN MARIE NTAMACK,

                Petitioner,

           v.

ERIC H. HOLDER, JR., United States Attorney General,

                Respondent.



On Petition for Review of an Order of the Board of Immigration
Appeals.


Argued:   January 29, 2010                  Decided:   March 30, 2010


Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and
Jackson L. KISER, Senior United States District Judge for the
Western District of Virginia, sitting by designation.


Petition for review denied by unpublished per curiam opinion.


ARGUED:   Danielle L. C. Beach-Oswald, BEACH-OSWALD IMMIGRATION
LAW ASSOCIATES, PC, Washington, D.C., for Petitioner.      Carol
Federighi, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.   ON BRIEF:   Amy M. Grunder, BEACH-OSWALD
IMMIGRATION   LAW   ASSOCIATES,   PC,   Washington,  D.C.,   for
Petitioner.   Tony West, Assistant Attorney General, William C.
Peachey, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.




                                2
PER CURIAM:

    The       Board       of     Immigration        Appeals          (“BIA”)      denied     the

application        of     Callixte       Ntamack,       a       native     and    citizen     of

Cameroon,      for        asylum,       withholding             of   removal       under     the

Immigration        and    Nationality         Act     (“INA”),       and    withholding       or

deferral      of    removal        under      the     Convention           Against      Torture

(“CAT”), based on the statutory “persecutor bar” to relief and

on Ntamack’s failure to demonstrate that he will be tortured if

returned to Cameroon.               The BIA found that Ntamack had been a

longtime member of Cameroon’s national gendarmerie and judicial

police force and had “ordered, incited, assisted, or otherwise

participated”        in    the    persecution         of    others       based     on   grounds

protected by the INA.

    Because        the     BIA’s       findings     are     supported       by     substantial

evidence in the record, we deny Ntamack’s petition for review.


                                               I

    After      completing          high      school    in       1983,    Ntamack     became    a

member   of    Cameroon’s          gendarmerie         and       entered     two     years    of

professional schooling and training.                            Upon completion of that

schooling and training, he served variously as an investigator,

a noncommissioned officer in the anti-gang unit, and a judicial

police   officer.              After    14    years        of    service,        Ntamack     fled




                                               3
Cameroon in 1999 and entered the United States on a 6-month

nonimmigrant visa, where he sought asylum.

      During     the   years     in   which   Ntamack     was    a    member    of   the

gendarmerie and judicial police, the State Department country

reports for Cameroon and reports from human rights organizations

indicated that these organizations frequently committed human

rights abuses, including unlawful killings, the use of harsh

interrogation techniques, and torture.                   In his application for

asylum, however, Ntamack stated that he was opposed to these

abuses     and   refrained       from    using     the   violent       interrogation

techniques employed by his colleagues.               While acknowledging that

the   government       falsely    accused     innocent    people      for    political

ends, Ntamack also denied that he participated in such cases.

He justified his continued membership in the gendarmerie and the

judicial    police      with   his    need    to   support      his   wife     and   six

children.

      Shortly after entering the United States, Ntamack filed an

application for asylum, but his application was denied.                        Because

he was, at the time, still lawfully within the United States,

removal proceedings were not initiated against him.

      In June 2002, Ntamack again applied for asylum, and again

his application was denied.             At this time, however, his case was

referred to an immigration judge as he had overstayed his visa.

While Ntamack conceded removability at the hearing before the

                                          4
immigration judge, he requested asylum, withholding of removal

under both the INA and the CAT, and deferral of removal under

the CAT.    In support of his application, Ntamack testified that

he    had   been        imprisoned     three     times     in      Cameroon      for

insubordination and suspicion of supporting the opposition to

the government.         He stated that, on each occasion, his superiors

believed that he was supporting the opposition because of his

unwillingness      to    engage   in   repressive      conduct,     and   on    each

occasion he was interrogated and beaten.

      His first imprisonment was in 1991, when his unit was sent

to suppress a demonstration in the province of Bamenda.                     Rather

than employ violent tactics, as he was ordered to do, Ntamack

falsely claimed to be suffering from a stomach ache and was sent

to a military hospital for testing.                  When the medical reports

showed no evidence of a           problem, Ntamack was            imprisoned     for

insubordination,        questioned     about   his    political     opinion,     and

accused of sympathy with the opposition.                 During this stay, he

was   handcuffed,       tied   up,     beaten,   and     whipped    while      being

interrogated.      When he was tried, however, he was acquitted due

to a lack of evidence, and, after being given a few days in the

hospital to rest, he was allowed to return to work.

      The second imprisonment occurred in 1992, when Ntamack was

dispatched with his unit to quell a student demonstration at the

University of Yaounde, during which the students were demanding

                                         5
democratic reforms and freedom.                   Ntamack stated that while he

attempted to persuade his colleagues to refrain from violence

and    sought     to    negotiate     with       the    students,      his       pleas   were

rejected.        Instead, members of his unit arrested, beat, and

wounded some of the students.                    Describing his own role during

the    demonstration,          Ntamack     stated,      “We   made     a    line    and    we

start[ed] going towards the students, and we start beating on

those who did not want to obey the order.”                            When asked to be

more specific about his own actions, he stated, “I held myself

back a bit.        Since (indiscernible) student divided the campus, I

tried (indiscernible) some of the group and asked them to go

back,   to   go    back    into      the   classroom.”          Upon       his    return    to

headquarters, Ntamack was again questioned about his political

opinions and accused of not actively participating in orders to

disperse     the       students.         Ntamack       was    again       imprisoned       for

insubordination         and,    he   claimed,         was   beaten    and    interrogated

under all kinds of conditions -- “bright lights day and night.”

When he was taken before a tribunal, he was again acquitted for

lack    of   evidence,         and   again       he    returned      to     work    in     the

gendarmerie.

       Ntamack was imprisoned the third time in 1997 when he was

assigned to assist at polling stations during the presidential

election.       After he told election observers about irregularities

and ballot-box tampering, his superiors questioned him about his

                                             6
political views.         He was again sent to prison, interrogated, and

beaten to the point of unconsciousness.                        Ntamack remained in

prison until August 1999, when, with the assistance of friends,

he escaped.       He stated that a friend, who worked at the prison,

opened the cell, permitting Ntamack to exit through the front of

the building.          Two friends waited there in a car and drove him

away.       He    then     went   into     hiding,      where        he     remained   for

approximately a month, before departing for the United States.

      In addition to giving his own testimony at the hearing,

Ntamack also presented the testimony of Anne Catherine Enane,

who confirmed some of what Ntamack stated, especially about the

events     at    the     University   of       Yaounde.         He        also   presented

documentary evidence in the form of prison discharge documents,

letters from relatives, and the State Department country reports

for Cameroon.

      After the hearing, the immigration judge denied Ntamack’s

application for asylum, withholding of removal under the INA,

and withholding of removal and deferral of removal under CAT.

The   judge      found    Ntamack’s   testimony         not    to    be     credible   for

several    reasons.         The   judge     noted      that    Ntamack’s         testimony

lacked     detail        about    certain          events     and     was        inherently

inconsistent -- he testified to imprisonment and mistreatment,

yet   he   was    allowed    to   remain       a    member    of     the     gendarmerie.

Indeed, he was even promoted, becoming a member of the judicial

                                           7
police.     The immigration judge also found discrepancies between

Ntamack’s story and that of Enane.

      On the merits, the immigration judge ruled that Ntamack had

not suffered past persecution because of his political opinions.

Rather,   his    imprisonment      and     mistreatment        were       due    to   his

insubordination.        The immigration judge also found that Ntamack

had failed to make a showing under CAT that it was more likely

than not that he would be tortured if returned to Cameroon,

observing that nothing in the record indicated the government’s

ongoing interest in him.           The judge acknowledged that Ntamack

might have to serve a sentence upon his return, but that such

punishment would be a legal response to his escape.

      The immigration judge found that even if Ntamack had made

the necessary showing for relief, the judge would deny relief

because Ntamack was a persecutor, barring relief by statute.

The   judge     found    that     the     gendarmerie       was       a    persecutory

organization that had committed acts of violence against the

students based on their political beliefs.                        While the judge

acknowledged     that    Ntamack    had       attempted   to    withdraw         himself

somewhat from violent actions, he nonetheless found that Ntamack

was “part of these units where people [were] being questioned,

harmed,   and    beaten,    and    therefore,       [was]      also       part   of   the

persecutory arm of government.”               The immigration judge rejected

Ntamack’s     financial     justification          for    remaining          with     the

                                          8
gendarmerie and determined that Ntamack had failed to carry his

burden of demonstrating that he was not a persecutor.

       On appeal, the BIA affirmed.                   It stated that it did not

need   to   address     the       immigration        judge’s    adverse    credibility

determination because Ntamack was statutorily barred from relief

because     he    was   a   persecutor.          While       recognizing    that    mere

membership in a persecutory organization was insufficient to bar

relief, the BIA noted that Ntamack had furthered persecution

through his inaction toward other members of his unit committing

acts of persecution, his participation in the imprisonment of

others, and his assistance in making a show of force toward the

protesting students.          In view of this evidence of persecution,

the BIA ruled that Ntamack had failed to meet his burden of

showing,     by     a   preponderance           of     the     evidence,    that     the

“persecutor bar” did not apply.

       In addition, the BIA affirmed denial of Ntamack’s request

for deferral of removal under CAT because Ntamack had failed to

demonstrate that it was more likely than not that he would be

tortured upon his return to Cameroon.

       From the BIA’s decision, Ntamack filed this petition for

review,     contending      (1)    that   the    BIA    erred    in   finding      him   a

persecutor; (2) that the evidence showed that it was more likely

than not that he would be tortured on his return to Cameroon;

and (3) that the Department of Homeland Security and the State

                                           9
Department,    in   their      investigation         of     his    claims    abroad,

violated his right to confidentiality, protected by 8 C.F.R. §

208.6.*


                                        II

      We review the BIA’s factual findings under the substantial

evidence   standard,       reversing    only    if    the    evidence      compels     a

contrary finding.      8 U.S.C. § 1252(b)(4)(B).

      For his principal argument on appeal, Ntamack challenges

the BIA’s determination that he engaged in persecutory conduct,

thus barring him from eligibility for asylum and withholding of

removal, under both the INA and CAT.

      The “persecutor bar” precludes the applicant from asylum

and   withholding     of    removal    upon    a     finding      that    “the    alien

ordered,   incited,    assisted,       or    otherwise      participated         in   the

persecution    of   any      person    on     account       of    race,     religion,

nationality,    membership       in    a     particular        social     group,      or

political opinion.”         See 8 U.S.C. § 1158(b)(2)(A)(i) (asylum);

see also id. § 1231(b)(3)(B)(i) (withholding removal under the

INA); 8 C.F.R. § 1208.16(d)(2) (withholding removal under CAT).

      *
       Ntamack also seeks to challenge the immigration judge’s
adverse credibility finding.     But because the BIA expressly
declined to consider the immigration judge’s credibility
determination, the issue is not properly before us. “[O]nly the
findings and order of the BIA, not those of the IJ,” are before
us on appeal.   Li Fang Lin v. Mukasey, 517 F.3d 685, 687-88 &
n.2 (4th Cir. 2008).


                                        10
Physical      participation        in        the       persecution         of      others    is   not

required for the persecutor bar to apply.                                Rather, the test is

whether       the   applicant’s          conduct             objectively           furthered       the

persecution of others.              See Higuit v. Gonzales, 433 F.3d 417,

421 (4th Cir. 2006); In the Matter of Federenko, 19 I. & N. Dec.

57, 69 (BIA 1984) (holding that alien’s subjective intent is

irrelevant      and   that    persecutor               bar       applies      if   the   objective

effect of alien’s actions is to further persecution, even if in

some    “small      measure”).               If    “evidence            indicates”       that     the

applicant assisted or otherwise participated in persecution, the

burden then shifts to the applicant to prove by a preponderance

of    the   evidence     that      he    did       not          contribute      to   the    alleged

persecutory acts.         8 C.F.R. §§ 208.16(d)(2), 1208.16(d)(2); see

also Higuit, 433 F.3d at 420-21.

       We     conclude    that,         in     this         case,       the     record      contains

substantial evidence to support the BIA’s finding that Ntamack’s

actions objectively furthered persecution.                              Ntamack testified to

his    participation       in      quelling             a       student       uprising      at     the

University of Yaounde by being more than a bystander.                                    He stated

that “we” -- referring to the gendarmes, of which he was one --

beat    the    students      and    stood          in       a    line    driving      them       back.

Although he did state that he “held [him]self back a bit,” this

statement is insufficient to remove him from                                    the persecutory

conduct.       While he may have demonstrated some hesitation about

                                                  11
repressive      action     and   his    participation           may   have      been    less

forceful than that of others, the fact remains that he stated

that   he     participated       in   the   line     pushing      back     and    beating

students.

       In addition, Ntamack furthered persecution simply by his

participation in what appears to be a phalanx or show of force

by the gendarmerie against the students.                        An alien’s physical

presence      can     provide     assistance        in    persecution          when     that

presence impedes the movement of those persecuted or otherwise

subjects      them    to   an    increased       risk     of    harm.          See,    e.g.,

Federenko, 19 I. & N. Dec. at 69 (unwilling Nazi prison guard

furthered persecution); Alvarado v. Gonzales, 449 F.3d 915, 928-

29 (9th Cir. 2006) (applicant’s presence and participation in

persecutory      interrogation         furthered         persecution);         Negele     v.

Ashcroft, 368 F.3d 981, 983-84 (8th Cir. 2004) (Nazi guard who

merely      patrolled      perimeter     of      concentration          camp    furthered

persecution).        Thus, Ntamack’s presence in the line that herded

and attacked students could well, by itself, have supported the

BIA’s finding of persecutory conduct.

       Ntamack argues that the BIA erroneously concentrated on the

facts of his membership in a persecutory organization and the

length   of    that     membership.         While    it    is    true    that     the    BIA

recited those facts, which can indeed be relevant, see Higuit,

433 F.3d at 421 (citing Singh v. Gonzales, 417 F.3d 736, 740

                                            12
(7th Cir. 2005)), the BIA did not rely solely on his membership

to support the persecutory bar.               Rather, it relied on Ntamack’s

actual participation in the effort to quell the uprising at the

university.

       Ntamack   also   argues    that    even       if   his   actions    furthered

violence   against      the   students,       the    record     reflects      that   the

gendarmerie was acting to control a riot, rather than attack a

legitimate    political       demonstration.          Accordingly,       he     reasons

that the     gendarmerie      was not acting in a persecutory manner

because it did not seek to harm the students on account of a

ground protected by the INA.             The record, however, belies this

contention.      Statements by Ntamack and others demonstrate that

the students were agitating in favor of democracy and freedom

and that the gendarmerie was sent to quell opposition to the

ruling party.

       Finally, Ntamack contends that the BIA failed to credit his

“redemptive acts,” such as his warning Enane of the coming raid

on her dormitory and his urging others to negotiate or return to

their classrooms.         But this evidence does not eliminate the

evidence that Ntamack himself aided some persecution, and only

some   amount    is   necessary    for    the       persecutor     bar     to    apply.

Stated   otherwise,      while   Ntamack’s          redemptive    activities         show

that he was less than sympathetic with the repressive goals of



                                         13
his unit, they do not compel the conclusion that the persecutor

bar should not apply.

      At     bottom,     substantial       evidence      supports        the    BIA’s

conclusion     that    Ntamack    is   statutorily      barred    from      receiving

asylum and withholding removal under the INA and CAT.


                                          III

      Ntamack    also    challenges       the   BIA’s   decision       to   deny     him

deferral of removal under 8 C.F.R. § 1208.17(a), which provides

that removal may be deferred when an alien demonstrates that “he

or she is more likely than not to be tortured” if removed.

“Torture” is defined as “an extreme form of cruel and inhuman

treatment” that occurs by or with the consent or acquiescence of

“a   public    official     or    other    person      acting    in    an   official

capacity.”      Id. § 1208.18(a)(1)-(2).            It does not include “pain

or suffering arising only from, inherent in or incidental to

lawful     sanctions     [such   as]   judicially       imposed       sanctions      and

other      enforcement     actions      authorized       by     law.”          Id.     §

1208.18(a)(3).

      The BIA found that Ntamack had failed to show that it was

more likely than not that he would be tortured.                   While there is

evidence in the record that Ntamack was imprisoned three times

for insubordination and suspicion that he was supporting the

political     opposition,        the   degree     of    mistreatment        that     he


                                          14
suffered is not totally clear.                     He did testify that he was

interrogated         under     difficult        conditions,      beaten       (once       to

unconsciousness), and otherwise mistreated while in prison, but

his     testimony      also       indicates       that    he    was    subjected          to

mistreatment during the initial phase of his incarceration and

only to incarceration thereafter.                    Moreover, he never sought

extensive medical attention as a result of his treatment by

authorities.         And following the first two imprisonments, he was

released and allowed to return to work as an employee of the

government.      The BIA concluded that Ntamack’s mistreatment did

not rise to the extreme level of “torture” as defined under CAT.

The     BIA   also     found      that     no    evidence      indicated      that    the

government had any interest in him now, if he were to return,

except perhaps to punish him for escape.                       We conclude that the

BIA’s     determination,          while     a    close    call,       is     nonetheless

supported by substantial evidence because it cannot be said that

the   record    compels       a   contrary       conclusion,     as   required       by   8

U.S.C. § 1252(b)(4)(B).             Accordingly, we also affirm the BIA’s

decision on deferral.


                                            IV

      Finally,       Ntamack      claims    that    the   overseas         investigation

into the authenticity of his prison release orders, which was

conducted by the Department of Homeland Security and the State


                                            15
Department, violated his right to confidentiality, protected by

8 C.F.R. § 208.6(a).          He argues that we should remand this case

to the BIA so that he can pursue this claim further.

    Ntamack did not, however, raise this argument before the

immigration    judge    or    the    BIA,    and   therefore       we   do   not    have

jurisdiction to consider the issue.                “A court may review a final

order   or    removal        only    if     the    alien     has    exhausted        all

administrative     remedies          available          to   the    alien      as     of

right . . . .”          8    U.S.C.       § 1252(d)(1);      see    also     Asika    v.

Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (failure to

raise   an   argument       before   the    BIA    is    failure   to   exhaust      all

remedies under the statute).

    For the foregoing reasons, we affirm the decision of the

BIA and deny Ntamack’s petition for review.


                                                    PETITION FOR REVIEW DENIED




                                           16
