     Case: 15-60428      Document: 00513539908         Page: 1    Date Filed: 06/08/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-60428
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 8, 2016
                                                                           Lyle W. Cayce
                                                                                Clerk
JEAN CLAUDE MUVUNYI,

                                                 Petitioner,

versus

LORETTA LYNCH, U.S. Attorney General,

                                                 Respondent.




                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A205 456 018




Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM: *

       Jean Muvunyi, a native and citizen of Rwanda, petitions for review of



       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 15-60428

the dismissal by the Board of Immigration Appeals (“BIA”) of his appeal of the
denial by the immigration judge (“IJ”) of his 2015 motion to reopen his removal
proceedings. Muvunyi maintains that the BIA erred in denying the motion to
reopen regarding the denial of his request for protection under the Convention
Against Torture (“CAT”). He does not contend that the BIA erred in denying
his motion to reopen regarding his requests for asylum and withholding of
removal. Accordingly, he has abandoned those issues. See Soadjede v. Ash-
croft, 324 F.3d 830, 833 (5th Cir. 2003).

      We review the BIA’s denial of a motion to reopen under a “highly defer-
ential abuse-of-discretion standard.” Gomez-Palacios v. Holder, 560 F.3d 354,
358 (5th Cir. 2009). The BIA “abuses its discretion when it issues a decision
that is capricious, irrational, utterly without foundation in the evidence, based
on legally erroneous interpretations of statutes or regulations, or based on
unexplained departures from regulations or established policies.” Barrios-
Cantarero v. Holder, 772 F.3d 1019, 1021 (5th Cir. 2014). We review questions
of law de novo and factual findings under the substantial-evidence test. Id.

      Muvunyi claims that the BIA applied the wrong standard of review in
denying the motion to reopen. He urges that the BIA should have considered
whether he had made a prima facie showing that he was entitled to CAT pro-
tection instead of considering whether the new evidence that he submitted in
support of the motion to reopen would likely change the result. Because, as
explained below, Muvunyi has not made a prima facie showing that he is entit-
led to CAT protection, any error by the BIA regarding the applicable standard
of review was harmless. See Cantu-Delgadillo v. Holder, 584 F.3d 682, 690
(5th Cir. 2009).

      Additionally, Muvunyi posits that the BIA erred in determining that he
did not explain why allegedly new evidence regarding a 2010 assassination


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                                  No. 15-60428

attempt against Kayumba Nyamwasa, a former Rwandan military officer who
had fled to South Africa because of his opposition to the Rwandan government,
was not or could not have been presented at the merits hearing. The BIA is
foreclosed from granting motions to reopen unless “it appears to the [BIA] that
evidence sought to be offered is material and was not available and could not
have been discovered or presented at the former hearing[.]”               8 C.F.R.
§ 1003.2(c)(1). Because evidence of the 2010 attempted assassination of Nyam-
wasa was available during the merits hearing, the BIA did not abuse its dis-
cretion in refusing to consider that evidence in denying the motion to reopen.

      Muvunyi also argues that the BIA erred in focusing on whether he pre-
sented evidence addressing the IJ’s credibility determination, especially
regarding inconsistencies that the IJ had found regarding Muvunyi’s relation-
ship with Nyamwasa. Muvunyi contends that his new evidence made a prima
facie showing that he was entitled to CAT protection.

      To receive protection under the CAT, Muvunyi had the burden to estab-
lish that it was “more likely than not” that he would be tortured if removed to
Rwanda. See 8 C.F.R. § 1208.16(c)(2); Hakim v. Holder, 628 F.3d 151, 155 (5th
Cir. 2010). Torture is defined, inter alia, as any act by which severe pain or
suffering is intentionally inflicted on a person for such purposes as punishing,
intimidating, or coercion, or for any reason based on discrimination of any kind,
by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. § 1208.18(a)(1). To constitute
torture, an act must be “an extreme form of cruel and unusual punishment.”
§ 1208.18(a)(2).   The following evidence may factor into a determination
whether it is more likely than not that a person will be tortured if removed to
the proposed country: (1) evidence of past torture; (2) evidence that the appli-
cant could relocate where he would not likely be tortured; (3) evidence of mass


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                                 No. 15-60428

violations of human rights within the country; and (4) any other relevant infor-
mation. § 1208.16(c)(3).

      Although Muvunyi challenges the BIA’s reliance on the IJ’s credibility
determination, the relevance of evidence regarding Nyamwasa’s attempted
assassination hinges on the issue whether Muvunyi’s testimony regarding his
relationship with Nyamwasa was credible. In any event, the evidence submit-
ted by Muvunyi in support of the motion to reopen does not make a prima facie
showing that he is entitled to CAT protection.

      Evidence regarding (1) Muvunyi’s friend’s alleged vague assertion that
Muvunyi was on a list of persons whom the Rwandan government intended to
“harm” and (2) Muvunyi’s mother’s alleged statement that men had searched
her house to see if he had been there or had contacted her is insufficient for
prima facie proof that it is “more likely than not” that Muvunyi will be tortured
if he were removed to Rwanda. See § 1208.16(c)(2), (3). Additionally, media
articles describing the attempted assassination of Nyamwasa and the assas-
sination of another former Rwandan military leader after they fled to South
Africa do not demonstrate mass violations of human rights within Rwanda, nor
do they otherwise make a prima facie showing that Muvunyi is entitled to CAT
protection. See id. Accordingly, Muvunyi has not demonstrated that the BIA
abused its discretion in denying the motion to reopen.

      The petition for review is DENIED.




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