                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                                                             March 16, 2006
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                      ))))))))))))))))))))))))))                 Clerk
                            No. 05-60226

                      ))))))))))))))))))))))))))

BENEDICTA MBENG,

                                                         Petitioner,

versus

ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,

                                                         Respondent.




                    Petition for Review from the
                    Board of Immigration Appeals
                           No. A95 905 995



Before JOLLY, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Benedicta Mbeng petitions for review of an order of the Board

of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) decision to deny her application for asylum, withholding of

removal, and relief under the Convention Against Torture.1      Because


     *
       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this opinion should not be published and is not precedent except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.
     1
      The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85 [hereinafter “Convention Against
Torture”].   See § 2242 of the Foreign Affairs Reform and
substantial evidence supports the IJ’s decision, we DENY Mbeng’s

petition for review.

I.   BACKGROUND

     Petitioner Benedicta Mbeng is a forty-nine year-old, native and

citizen of Cameroon, who entered the United States on June 6, 2001,

as a non-immigrant visitor with authorization to remain until

December 5, 2001.   On August 15, 2002, the former Immigration and

Naturalization Service (“INS”) issued a Notice to Appear, charging

Petitioner with removability pursuant to section 237(a)(1)(b) of the

Immigration and Nationality Act (“INA”).2 Through written pleadings

and at a hearing, Petitioner conceded that she was removable as

charged, but requested asylum under section 208,3 withholding of

removal pursuant to section 241(b)(3)(A),4 and protection under the

Convention Against Torture.


Restructuring Act of 1998, Pub. L. No. 105-277, codified at 28
U.S.C. § 1231 (1998).

     2
       Section 237(a)(1)(b) provides that “[a]ny alien who is
present in the United States in violation of this chapter or any
other law of the United States, or whose nonimmigrant visa (or
other documentation authorizing admission into the United States
as a nonimmigrant) has been revoked under section 1201(i) of this
title, is deportable.” 8 U.S.C. § 1227 (a)(1)(B).
     3
      Section 208 of the INA discusses asylum generally and is
codified at 8 U.S.C. § 1158.
     4
       Section 241(b)(3)(A)provides that “the Attorney General
may not remove an alien to a country if the Attorney General
decides that the alien's life or freedom would be threatened in
that country because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A).

                                 2
     The    Petitioner’s   applications      for   asylum,    withholding   of

removal, and protection under the Convention Against Torture are all

based on her memberships in the Social Democratic Front (“SDF”) and

the Southern Cameroon’s National Council (“SCNC”).            The SDF is the

leading    opposition   party    to   the   Cameroon     People’s   Democratic

Movement.     The party is committed to ushering democracy, human

rights, and social justice into Cameroon. Petitioner joined the SDF

in 1991 and was elected ward treasurer in 1998.                 Petitioner’s

sister, Ophelia, served as legal advisor in her ward.           Petitioner’s

husband, who still lives in Cameroon, was elected treasurer             of his

ward in 1992 and retains that office to this day.               Petitioner’s

brother-in-law, who also resides in Cameroon, is the legal advisor

to John Fru Ndi, SDF’s national chairman.

     The    SCNC   mobilizes    opposition    to   the    current   political

leadership in Cameroon in hopes of eliminating the occurrence of

human rights abuses and international law violations.               Petitioner

joined the SCNC in 1998.        At that time, she was a founder of that

ward and later elected treasurer.

     During her removal proceedings, Petitioner testified that she

was subjected to persecution on at least four occasions. First, she

testified that on October 28, 1992, at approximately 3:00 A.M.,

while visiting her sister, Rose, police officers broke into Rose’s

home.     Petitioner testified that the policemen were attempting to

find Ophelia’s husband.          While attempting to locate Ophelia’s

husband, the officers threw Rose’s newborn on a bed and beat and

                                       3
attempted to rape Rose.        Petitioner testified that she, too, was

beaten after being asked the whereabouts of Ophelia’s husband.

     The second incident occurred in 1996.           Petitioner testified

that while attending a meeting of one of her organizations,5 troops

broke into the meeting-room, captured approximately thirty of the

ninety members present, and transported them to a police station.

There, the members were told to sit on the ground, in the sun, for

approximately eight hours because all of the jail cells were full.

Petitioner also testified that the detainees were not fed, given

anything to drink, or allowed to use the restroom.           Additionally,

she stated that, at one point, officers soaked the detainees with

water from a nearby stream. Petitioner stated that she was released

after her sister Ophelia learned of the incident and drove to the

police station to negotiate with the officers.

     Petitioner testified that her third encounter with officials

occurred in December 1999. SCNC members stormed a radio station and

declared the independence of Southern Cameroon, which sparked a

backlash on SCNC members by the government.               The Petitioner’s

testimony indicates that, out of fear, she and her husband hid in

his former village for two months.           When they returned to their

home,    they   found   that   one   wall   had   been   partially   burned.

Petitioner stated that her neighbors told her that the arsonists



     5
       The record does not clarify whether the meeting was
comprised of SDF or SCNC members.

                                      4
were Francophones.6

     Finally, on March 16, 2001, after knocking, police entered

Petitioner’s home and asked for the whereabouts of Rose.        The

officers also searched the house, took some personal and political

documents, slapped Petitioner, and presented her with summons which

required her to report to the police station on the following day.

     In the United States, Petitioner continues to attend SCNC

meetings in Dallas, Texas.    The Petitioner told the IJ that she

believes the Cameroonian government is aware that she is in the

United States and remains politically active because the government

has agents in this country.     The IJ also noted that Petitioner

stated that if she returns to Cameroon she fears being arrested at

the airport, and then being persecuted or tortured.     However, on

cross-examination, Petitioner conceded that her husband, brother-in-

law, and her children all reside in Cameroon and are having no

problems living there. Additionally, Petitioner admitted that seven

of the eight mayors in her city are SDF members.

     At the hearing, Petitioner also presented the testimony of her

sister, Ophelia.   The IJ noted that Ophelia’s testimony is largely

consistent with Petitioner’s, save a discrepancy concerning the

whereabouts of Ophelia’s husband on the morning of October 28, 1992.

     The IJ credited all of Petitioner’s testimony but, held that



     6
      Petitioner is an Anglophone. In Cameroon, Francophones
maintain most of the political power and social status.

                                 5
the facts alleged did not satisfy the standards of eligibility for

asylum, withholding of removal, or relief under the Convention

Against Torture. The BIA affirmed the IJ’s decision without issuing

an opinion.

II.   STANDARD OF REVIEW

      Although we ordinarily review decisions made by the BIA,

because the BIA affirmed without opinion, the IJ’s decision became

the final agency determination for purposes of this appeal. Soadjede

v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003).      “We use the

substantial evidence standard to review the IJ’s factual conclusion

that an alien is not eligible for asylum,” Zhao v. Gonzales, 404

F.3d 295, 306 (5th Cir. 2005), withholding of removal, Zamora-Morel

v. INS, 905 F.2d 833, 838 (5th Cir. 1990), and relief under the

Convention Against Torture, Ontunez-Tursios v. Ashcroft, 303 F.3d

341, 353 (5th Cir. 2002).   Under this standard, we will not disturb

factual findings of the BIA “unless we find not only that the

evidence supports a contrary conclusion, but that the evidence

compels it.”   Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994); see also

8 U.S.C. § 1252(b)(4)(B).   “[I]t is the factfinder’s duty to make

determinations based on the credibility of the witnesses.” Zhao, 404

F.3d at 306 (quoting Chun v. INS, 40 F.3d at 78)(alteration in

original).     Consequently, we give great deference to an IJ’s

findings concerning a witness’s credibility.   Efe v. Ashcroft, 293

F.3d 899, 903 (5th Cir. 2002).   “We cannot substitute our judgment

                                  6
for that of the BIA or IJ with respect to the credibility of the

witnesses   or     ultimate   factual       findings    based   on     credibility

determinations.”      Chun, 40 F.3d at 78.

III. DISCUSSION

      A.    Substantial Evidence Supports the IJ’s Decision Denying
            Petitioner’s Application for Asylum

      Petitioner argues that the IJ failed to consider all of the

evidence in favor of granting relief and mischaracterized the

evidence weighing against granting the requested relief.

      Pursuant to 8 U.S.C. § 1158(a), the Attorney General enjoys

authority to grant asylum to any alien who qualifies as a refugee

under Section 1101(a)(42)(A) of the INA.7 Therefore, the alien must

demonstrate that she has been persecuted or has a well-founded fear

of   persecution    on   account   of   one     of     the   factors   listed   in

1101(a)(42)(A).8     Although the INA does not define persecution, we

have described it as “[t]he infliction of suffering or harm, under



      7
      The statute defines a “refugee” as:
          any person ... who is unable or unwilling to
          return to, and is unable or unwilling to
          avail himself or herself of the protection
          of, that country because of persecution or a
          well-founded fear of persecution on account
          of race, religion, nationality, membership in
          a particular social group, or political
          opinion ....
8 U.S.C. § 1101(a)(42)(A).
      8
       However, we emphasize       that because the decision to grant
or deny asylum is within the       IJ’s bailiwick, the fact that the
alien qualifies as a refugee       under the statute does not
automatically entitle her to       asylum. Zhao, 404 F.3d at 306.

                                        7
government sanction, upon persons who differ in a way regarded as

offensive (e.g., race, religion, political opinion, etc.), in a

manner condemned by civilized governments.”        Abdel-Masieh v. INS,

73 F.3d 579, 583 (5th Cir. 1996)(quoting Matter of Laipenieks, 18

I & N Dec. 433, 456-57 (BIA 1983)).

      The IJ found that there was no evidence that rose to the level

of past persecution and that Petitioner’s credited testimony was

legally insufficient to establish a well-founded fear of future

persecution.     The IJ did not question Petitioner’s veracity but

stated that she failed to satisfy the standards of eligibility for

the   relief    requested.   The   fact   that   the   IJ   did   not   doubt

Petitioner’s testimony is significant because we must accept as true

all the facts to which she testified.       See Zhao, 404 F.3d at 306.

Hence, the question here is merely one of legal sufficiency of the

facts alleged.     Id.

           1.     Petitioner Did Not Suffer Past Persecution

      First, we must consider whether Petitioner suffered past

persecution. Her testimony focuses on four specific incidents. The

IJ, however, properly found that none of the incidents rise to

“persecution” based on her political opinion as delineated by this

Court.

      While Petitioner was beaten in 1992, she was not the target of

the government’s inquiry.    Petitioner merely happened to be at her

sister’s home while government officials came to look for her


                                    8
brother-in-law.    The second incident, Petitioner’s detainment for

eight hours, was not persecution based on her political beliefs

because Petitioner provided no testimony as to why she was detained,

no charges were brought against her, she was not convicted of any

crime, and she was ultimately released after eight hours. Moreover,

the fact that Petitioner was slapped and had some political and

personal documents confiscated by police when she was unable to tell

them the location of her sister was not persecution based on her

political beliefs, because the officers were searching for Rose, the

Petitioner’s sister, not the Petitioner.       Finally, the fact that a

wall in Petitioner’s home was burned after she had been away for

over two months does not indicate past persecution, especially in

light of the fact that the Petitioner cannot present any meaningful

evidence as to who burned the wall or why it was ignited.        Hence,

none of the incidents described by Petitioner compels us to reach

a contrary conclusion to the one made by the IJ.

     2.    Petitioner Failed to Establish a Well-Founded Fear of
           Future Persecution

     To establish a well-founded fear of future persecution, an

alien must demonstrate “a subjective fear of persecution, and that

fear must be objectively reasonable.”     Eduard v. Ashcroft, 379 F.3d

182, 189 (5th Cir. 2004)(quoting Lopez-Gomez v. Ashcroft, 263 F.3d

442, 445 (5th Cir. 2001)). To meet this burden, an alien can either

satisfy   the   standard   articulated   in   Section   208.13(b)(2)   or

demonstrate that she would be singled out for persecution.             See

                                   9
Zhao, 404 F.3d at 307.

       Section 208.13(b)(2) has two prongs.      The alien need not

provide evidence that she would be singled out for persecution, if:

            (A) [She] establishes that there is a pattern
            or practice in ... her country ... of
            persecution of a group of persons similarly
            situated ... on account of race, religion,
            nationality, membership in a particular social
            group, or political opinion; and
            (B) [She] establishes ... her own inclusion
            in, and identification with, such group of
            persons such that [her] fear of persecution
            upon return is reasonable.

8 C.F.R. § 208.13(b)(2)(iii)(A)-(B).

       Meeting the standard requiring an alien to demonstrate that she

would be singled out for persecution “does not require [the alien]

to demonstrate that [s]he will be persecuted on returning to the

[designated country].” Zhao, 404 F.3d at 307.     Rather, it requires

her to show that there is a reasonable degree of certainty that her

return there would be intolerable.     See Eduard, 379 F.3d at 189.

       We apply the reasonableness inquiry to both the “singled out”

standard and the prongs of Section 208.13(b)(2).    Zhao, 404 F.3d at

307.

            To establish the objective reasonableness of a
            well-founded fear of future persecution, the
            alien must prove that (1) he possesses a
            belief or characteristic a persecutor seeks to
            overcome by means of punishment of some sort;
            (2) the persecutor is already aware, or could
            become aware, that the alien possesses this
            belief or characteristic; (3) the persecutor
            has the capability of punishing the alien;
            and, (4) the persecutor has the inclination to
            punish the alien.

                                  10
Id. (quoting Eduard, 379 F.3d at 191).         Finally, the applicant need

not prove that the government was actually aware of her beliefs and

activities as long as the government could easily become aware of

such.    Id. at 308.

     There is substantial evidence to support the IJ’s finding that

Petitioner   failed    to   establish    a   well-founded   fear   of   future

persecution. In light of the four factors considered when assessing

reasonableness, Petitioner fails to demonstrate that the Cameroonian

government has the inclination to punish her based on her political

beliefs and activities.      Hence, Petitioner’s allegation that there

was a pattern or practice of persecution and that she might be

singled out for persecution are both unreasonable. Both the SDF and

SCNC have hundreds of thousands of members who participate in

political activity without incident or persecution.            Moreover, as

Petitioner testified, seven of the eight mayors in her city are SDF

members.   Furthermore, the IJ noted, without referring to the two-

prong test, that Petitioner conceded that her husband and brother-

in-law both reside in Cameroon without any problems.9




     B.     Substantial Evidence Supports the IJ’s Denial of Mbeng’s
            Application for Withholding of Removal


     9
      The record even reflects that Petitioner’s husband
successfully held a government job while involved with the SDF
and SCNC. As previously mentioned, Mbeng’s brother-in-law holds
a much more prominent role in SDF than the Petitioner.

                                    11
     Petitioner also argues that the IJ applied an incorrect legal

standard, and that the evidence compels a different finding of fact

with regard to her request for withholding of removal.10   In light

of our finding that substantial evidence supports the IJ’s decision

with regard to Petitioner’s application for asylum, we need not

address this issue.   See Girma v. INS, 283 F.3d 664, 666-67 (5th

Cir. 2002)(“The level of proof required to satisfy the requirements

for withholding of deportation is more stringent than for asylum

purposes.”).11



     C.   Substantial Evidence Supports the IJ’s Denial of Mbeng’s
          Application for Relief under the Convention Against
          Torture

     10
      While a grant of asylum permits an alien to remain in this
country, a withholding of removal forbids the alien’s removal to
the persecuting country. See INA §§ 208 & 241(b)(3), codified at
8 U.S.C. §§ 1158, 1231(b)(3). Although a grant of asylum is
within the agency’s discretion, a restriction on removal is
granted to qualified aliens as a matter of right. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 424 (1987). Additionally,
“[u]nlike asylum, withholding of removal does not require a
showing that the petitioner has a subjective fear of
persecution.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005)(citing Guevara Flores v. INS, 786 F.2d 1242, 1250 (5th Cir.
1986)). “[T]he alien need only demonstrate a ‘clear probability’
of persecution if returned to [her] home country.” Id. (citing
Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
     11
      Because the IIRIRA changed the language of immigration
orders, orders of deportation and orders of exclusion are both
now referred to as “orders of removal.” See IIRIRA § 309(d)(2),
110 Stat. 3009 (1996) ( “[A]ny reference in law to an order of
removal shall be deemed to include a reference to an order of
exclusion and deportation or an order of deportation.”).
Therefore, we use the words “removal” and “deportation”
interchangeably.

                                12
     Petitioner also argues that the evidence compels a different

finding of fact with regard to her request for relief pursuant to

the Convention Against Torture.    She contends that if she returns

to Cameroon she fears being arrested at the airport and tortured not

only because of her past affiliation with the SDF and SCNC, but also

because of her continued participation in the organizations.

          Claims based on the Convention Against Torture
          differ from claims of asylum and withholding
          of removal because alleged mistreatment need
          not involve “one of the five categories of
          race, religion, nationality, membership in a
          particular social group or political opinion”
          and because proof of torture, not simply
          persecution, is required. To obtain relief,
          an applicant must show that it is “more likely
          than not” that he would be tortured if
          returned to his home country.

Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005). (citations

omitted)(emphasis added).

     The Federal Register defines torture as:

          any act by which severe pain or suffering ...
          is intentionally inflicted on a person ... for
          any reason based on discrimination of any
          kind, when such pain or suffering is inflicted
          by or at the instigation of or with the
          consent or acquiescence of a public official
          or other person acting in an official
          capacity.

8 C.F.R. § 208.18(a)(1).

     To determine whether relief pursuant to the Convention Against

Torture is appropriate, the IJ should consider:

          (i) Evidence of past torture inflicted upon
          the applicant;

                                  13
           (ii) Evidence that the applicant could
           relocate to a part of the country of removal
           where he or she is not likely to be tortured;
           (iii) Evidence of gross, flagrant or mass
           violations of human rights within the country
           of removal, where applicable; and
           (iv) Other relevant information regarding
           conditions in the country of removal.

8 C.F.R. § 208.16(c)(3).

     The IJ did not reach this issue because he concluded that

because Petitioner failed to meet the lower burden with regard to

her application for asylum, it followed that she would fail to

satisfy the higher burdens for withholding of removal and relief

pursuant to the Convention Against Torture.     See Dika v. Ashcroft,

85 F. App’x 374, 375 (5th Cir. 2004)(“The burden of proof for

withholding of removal under the Immigration and Nationality Act and

under the Convention Against Torture is a higher standard than

asylum.   Failure to satisfy the less demanding asylum standard is,

a fortiori, a failure to demonstrate eligibility for withholding of

removal.”).   However, we will still analyze this claim separately

because Petitioner need only prove torture–not persecution based on

one of the five enumerated categories.    See Zhang, 432 F.3d at 345.

     The IJ’s decision is supported by substantial evidence.     While

the 1992 beating might constitute past torture for purposes of the

Convention, Petitioner fails to demonstrate that it is more likely

than not that she will be tortured if she returns to Cameroon.

Moreover, the existence of this evidence alone does not compel us

to disturb the IJ’s factfinding.      The long time span   between the

                                 14
incidents discussed at the hearing suggests that the government is

not likely to torture Petitioner.       Moreover, as previously noted,

both the SDF and SCNC have a multitude of members, including

Petitioner’s own relatives, who participate in political activities

without incident or persecution.    Hence, the IJ’s denial of Mbeng’s

application for relief pursuant to the Convention Against Torture

is supported by substantial evidence.

IV.   CONCLUSION

      For the foregoing reasons, we AFFIRM the IJ’s decision to deny

Petitioner’s application for asylum, withholding of removal, and

relief under the Convention Against Torture proceedings.      Thus we

DENY Mbeng’s petition for review.




                                   15
