                               PUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                              No. 15-1735


LEOPOLD MUNYAKAZI,

                Petitioner,

           v.

LORETTA E. LYNCH, Attorney General,

                Respondent.



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


Argued:   March 24, 2016                    Decided:   July 11, 2016


Before TRAXLER, SHEDD, and FLOYD, Circuit Judges.


Petition denied by published opinion.     Judge Shedd wrote the
opinion, in which Judge Traxler and Judge Floyd concurred.


ARGUED:    Ofelia Lee Calderon, CALDERON SEGUIN PLC, Fairfax,
Virginia, for Petitioner.      Jeffrey Lawrence Menkin, UNITED
STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON BRIEF: Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, Mark C. Walters, Senior Counsel for
National Security, National Security Unit, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
SHEDD, Circuit Judge:

      Leopold    Munyakazi    petitions        for       review    of    the    Board    of

Immigration     Appeals’     (BIA)     denial        of    his     applications         for

asylum,   withholding        of     removal,        and    protection          under    the

Convention Against Torture (CAT). Because substantial evidence

supports the agency’s rulings, we deny the petition.

                                        I.

      As a matter of background, we begin by quoting a United

States State Department summary of the 1994 Rwandan genocide:

      Longstanding tensions in the country culminated in the
      1994 state-orchestrated genocide, in which Rwandans
      killed between 750,000 and one million of their fellow
      citizens, including approximately three-quarters of
      the Tutsi population. Following the killing of the
      president in 1994, an extremist interim government
      directed the Hutu-dominated national army, militia
      groups, and ordinary citizens to kill resident Tutsis
      and moderate Hutus. The genocide ended later the same
      year when the predominantly Tutsi RPF . . . defeated
      the national army and Hutu militias and established an
      RPF-led government of national unity.

(J.A. 527).

      Munyakazi,      an   ethnic    Hutu,     is    a    native    and      citizen     of

Rwanda who came to the United States in 2004 on a business visa.

Prior to his visa’s expiration, Munyakazi filed an application

for   asylum    and   withholding      of    removal.       While       in   the   United

States, Munyakazi, who worked as a college professor in Rwanda,

began teaching at Montclair State University in New Jersey. In

October 2006, he spoke at a faculty forum at the University of


                                         2
Delaware. During this speech, Munyakazi expressed his opinion

that       the   1994   massacre    of   ethnic     Tutsis    in   Rwanda      was

fratricide,       not   genocide.   He   would    express    similar   views    in

another speech later that year.

       In    November   2006,   Rwanda   issued    an   international    arrest

warrant for Munyakazi, charging him with genocide and genocide

negation. Rwanda issued a second warrant for the same charges in

October 2008. In January 2009, almost five years after Munyakazi

filed his initial asylum application, the Department of Homeland

Security (DHS) issued him a notice to appear, charging him with

removability. Munyakazi conceded removability but filed revised

applications for asylum and withholding of removal. Munyakazi

also requested CAT protection. An Immigration Judge (IJ) held a

multi-day hearing on Munyakazi’s removability.

       Munyakazi testified at the hearing that at the time the

genocide began he and his family lived in the Rwandan capital,

Kigali. Although a travel ban was in place, Munyakazi and his

family joined a convoy 1 to his native village of Kirwa. On the

morning of April 19, 1994, Munyakazi briefly went to a local

government office in Kirwa to report an attempted break-in at

his home in Kirwa. He then returned to that home and did not



       1
       The convoy was headed by a high-ranking Hutu general who
has since been indicted for participation in the genocide.



                                         3
leave until after April 22. Munyakazi testified that sometime

after April 22 he helped five Tutsi women obtain Hutu ID cards.

      Munyakazi’s testimony that he remained indoors for several

days is important because following a rally at a soccer stadium

on April 19, ethnic Hutus killed virtually every Tutsi in Kirwa. 2

While acknowledging this fact, Munyakazi testified that he saw

little to no violence and did not know anyone responsible for

any   of     the   violence.     When       pressed     with         accounts    from

genocidaires—persons       convicted        of     genocide     in     the     Rwandan

courts—that he was involved in the violence in Kirwa, Munyakazi

testified that the Rwandan government was forcing them to speak

out against him.

      Munyakazi further testified that he was arrested later in

1994 and held without charge until 1999. During his time in

captivity,    he    was   subjected     to       beatings     and     psychological

stress.

      Munyakazi’s    wife,     Catherine         Mukantabana,       also     testified

before the IJ. Catherine, an ethnic Tutsi, generally agreed with

Munyakazi’s    testimony     regarding       their     exit    from     Kigali    and



      2The Immigration and Customs Enforcement (ICE) Agent who
conducted an investigation into Rwanda’s allegations against
Munyakazi testified that investigators could find only one
unattached (i.e., not married to a Hutu) Tutsi in the entire
village—a man who was a child at the time of the genocide and
hid in the woods.



                                        4
travel to Kirwa. Discussing their time in Kirwa, she testified

that she did not believe there was a meeting on April 19 but

conceded that her husband left the house that morning to go to

the government offices and to run some errands. She testified

that Munyakazi helped five Tutsis receive Hutu ID cards and that

he   did    not     participate         in   the    genocide.     Importantly,       she

testified that the five Tutsis arrived at their house prior to

April 19 and that Munyakazi took their names to Kirwa’s mayor on

April 19. She also testified that many members of her family

were killed during the genocide, and the IJ noted that she was

“tense and stressed” discussing the genocide and that “[h]er

hands were shaking.” (J.A. 896).

     In    addition       to   this     testimony,       Munyakazi    also   presented

several     other       witnesses,       including       former   Attorney       General

Ramsey Clark, who testified generally about the Rwandan justice

system     and    the    genocide.       None      had   first-hand      knowledge    of

Munyakazi’s       actions      during    April      1994.   Munyakazi     also    placed

into evidence five letters from the Tutsis he claimed to have

aided in obtaining Hutu ID cards. One letter writer stated that

Munyakazi assisted her in obtaining an ID card on April 19,

while another stated that Munyakazi aided her on April 20.

     In    response       to   Munyakazi’s         evidence,    the   Government     put

forth testimony and investigation reports from ICE Special Agent

Jason    Hyman.     Hyman,     along     with      two   DHS   agents,    traveled    to

                                             5
Rwanda in June 2009 to conduct an independent investigation into

the Rwandan government’s accusations against Munyakazi. The DHS

investigators created an interview list after reviewing Rwandan

government files. The Rwandan prosecutors gave DHS latitude in

conducting the investigation, and the Rwandans’ main role was

locating         interpreters         and     procuring          the     witnesses.        Hyman

testified that they tried to give the Rwandan government little

notice      of    the    interviewees        to       minimize    the    chances    that    the

government would pressure them. The investigators would also ask

each       witness      if   they    had     spoken      to    Rwandan    authorities       and

whether       their      statements        were       coerced.    Importantly,       the    DHS

investigators            uncovered          several        witnesses,           including     a

genocidaire, who had never spoken to Rwandan officials about

Munyakazi.

       The       DHS    investigation         confirmed          the    broad     outline     of

Munyakazi’s           testimony—that        he    and    his     family    fled    Kigali     in

April,       traveled        to     Kirwa,       and    remained        there     during    the

genocide. The investigation found that the genocide in Kirwa

began following a meeting at a soccer field on April 19. In

contrast         to    Munyakazi’s     testimony,         however,      the     investigation

revealed that Munyakazi, wearing banana leaves, 3 addressed the



       3
       The rally leaders told the attendees to wear banana leaves
in order to identify themselves as Hutu.



                                                  6
crowd at the soccer field on April 19 and helped to instigate

the genocide. After the meeting, Munyakazi led a group of Hutus

to find Felicien, an educated Tutsi who was eventually killed.

Munyakazi also had a role in orchestrating night raids against

Tutsi homes.

       In total, the investigators interviewed 22 witnesses, six

of whom were convicted of genocide. Each interview was between

two-and-a-half           and    three    hours      in    length.    Generally,     the

witnesses were afraid of Munyakazi and feared retribution from

him if he found out they cooperated with authorities. Several

witnesses testified that members of Munyakazi’s family contacted

them       and    offered      them   money    if   they     refused    to    implicate

Munyakazi. 4         Importantly, “[t]he ICE investigation revealed no

individuals who attended the large meeting [at the soccer field]

and who did not see Dr. Munyakazi there.” (J.A. 911).

       Hyman was recalled to the stand to address the interview

reports          individually.        Relevant      here,    Hyman     discussed     an

interview         with    TM,     a    convicted     genocidaire.       TM    was   not

identified         by    the    Rwandans      and   had     never    been    previously

interviewed by Rwandan authorities. The investigators uncovered

       4
       The investigators tracked down a nephew who was allegedly
responsible for the attempted bribes. The nephew denied offering
bribes to witnesses but did admit that Munyakazi participated in
the soccer field meeting wearing banana leaves. The nephew also
admitted to his own participation in the genocide.



                                              7
his name during another interview and tracked him down the next

day. TM told the investigators that he was at the soccer meeting

and that Munyakazi was there wearing banana leaves. Munyakazi

told other Hutus to wear the leaves to avoid being mistaken as a

Tutsi. TM was able to draw a diagram of the soccer field and the

relative position of the leaders, including Munyakazi. TM told

the investigators that after the meeting Munyakazi led a group

to    Felicien’s      house.    During       this   trip,     Munyakazi   met    with   a

smaller group of Hutus and urged them to kill Tutsis because

they were enemies of true Rwandans.

       After the hearing, the IJ issued a 63-page opinion denying

Munyakazi’s applications for asylum, withholding of removal, and

protection under CAT. The IJ began by finding that Munyakazi was

not credible. The IJ noted that Munyakazi specifically testified

that    he    did    not    leave    his   house     from     April   19-22   but   that

letters from two of the Tutsis he claimed to help, as well as

the    testimony       of    his     wife,        suggested    otherwise.       “[T]hese

discrepancies,” the IJ found, “go to the heart of where the

Respondent was and what he was doing on and after April 19,

1994.”       (J.A.    923).     In     addition,        the     IJ    explained     that

Munyakazi’s testimony about the genocide “is quite vague and

appears at odds with what would be expected given the size of

the village, given the significance of the events, and given his

wife’s       recollections.”         (J.A.     924).    The     IJ    also    discussed

                                              8
Catherine’s testimony, concluding that she “has an interest” in

the outcome of the asylum petition, and, “[g]iven the extent of

the genocide in Kigali and Kirwa, [she] likely owes her life and

those of her children to her marriage to” Munyakazi. (J.A. 925).

       Addressing the DHS investigation, the IJ found that, out of

an abundance of caution, she would not credit the testimony of

the convicted genocidaires. The IJ made an exception for TM, the

individual uncovered by the investigators. The IJ also found

that    the   testimony    of   the   genocide        survivors    who   identified

Munyakazi as a participant was credible. The IJ noted that in

contrast      to   genocidaires     who   have   an    incentive    to    point   the

finger at others in exchange for leniency, genocide survivors

face violence and intimidation for testifying against genocide

participants. (J.A. 928). The IJ referred to several survivors

who    placed      Munyakazi   at   the   soccer   field    or    who    heard    that

Munyakazi was looking for them. The IJ summarized her views on

the investigation as follows:

       There is certainly the possibility of the Rwandan
       government attempting to pressure victims and other
       witnesses. This does not explain the variations in
       accounts from the witnesses or the fact that these
       variations remain consistent with each other. It also
       does not justify the risk being taken by victims and
       other witnesses, since there is no indication that the
       Rwandan   Government  can  protect   adequately  those
       individuals. In addition, the ICE special agents
       sought to identify witnesses independently and to give
       minimal notice to the Rwandan government when they
       needed assistance in locating witnesses. This limited
       the time available for Rwandan government officials to

                                          9
      influence or coach witnesses. Finally, while record
      evidence establishes that those accused of genocide
      are pressured to implicate others in exchange for
      leniency,   evidence  in   the  record   regarding any
      improper influence of other witnesses by the Rwandan
      government is vague and far less specific.

(J.A. 929-30).

      Given these factual findings, the IJ then addressed whether

Munyakazi was eligible for asylum. First, the IJ concluded that

Munyakazi, even with the adverse credibility finding, qualified

for    asylum   because    he   has   a    well-founded       fear    of   future

persecution based on a protected ground—his political opinion.

Nonetheless, the IJ found Munyakazi was statutorily ineligible

for    asylum   under     the   persecutor   bar    because      he    “ordered,

incited, assisted, or otherwise participated in the persecution

of others on account of their Tutsi ethnicity.” (J.A. 932). The

IJ found that the DHS investigation supported a finding that

Munyakazi participated in the genocide and that Munyakazi failed

to    prove   otherwise    by   preponderance      of   the    evidence.    This

finding also rendered Munyakazi ineligible for withholding of

removal. Finally, the IJ found Munyakazi was not entitled to

relief under CAT.

      Munyakazi appealed to the BIA. A three-member panel of the

BIA dismissed the asylum and withholding of removal appeals,

upholding the IJ’s credibility determinations and her conclusion




                                      10
that the persecutor bar applied. 5 The BIA remanded the CAT claim

for further factual findings.

      Thereafter,      the    IJ    held     another        evidentiary       hearing    on

Munyakazi’s CAT claim. Following the hearing, the IJ issued                               a

written    order    denying        relief.      The    IJ    found     that    Munyakazi

claimed to be “mistreated” during his earlier detention but that

“significant     developments”        in     Rwanda     gave    his    allegations       of

mistreatment “little relevance” to his current situation. (J.A.

101). The IJ did find that Munyakazi was likely to be arrested

and detained if he was returned to Rwanda and that, because he

was facing charges relating to genocide, he would be detained in

a civilian detention facility rather that a military facility.

This distinction was crucial to the IJ because, although the

civilian    facilities       have    “poor      conditions,”      those       conditions—

overcrowding, visit limitations, inconsistent food and medicine

and   sporadic     beatings—did       not     meet     the     legal    definition       of

torture. (J.A. 102). The IJ relied on a 2012 State Department

Report     as   well   as     reports      from       Amnesty    International          and

monitoring reports from the International Criminal Tribunal for




      5The BIA did not address whether Munyakazi qualified for
asylum notwithstanding the persecutor bar.



                                           11
Rwanda (ICTR), to support the finding that accused genocidaires

were held in civilian detention facilities. 6

      In reaching the conclusion that Munyakazi more likely than

not would be detained in a civilian prison, the IJ noted that

his own witness, Simeon Babonampoze, testified that he did not

see any persons charged with genocide at the military facility

where     he    was    detained.    The     IJ    also   explained      that   while

Munyakazi       claimed    that    his     arrest    warrant    was     politically

motivated, there was no evidence that Rwanda was charging him

with terrorist or political offenses, and that Munyakazi was not

a member of the opposition party, the United Democratic Forces

(UDF).

      Munyakazi again appealed to the BIA, and the BIA dismissed.

The   BIA      concluded   that    the     IJ’s    factual    findings    were    not

clearly        erroneous   and     that,    with     those    factual     findings—

including       the   finding    that    Munyakazi    would    be   detained     in   a

civilian prison—he could not show it was more likely than not

that he would be tortured. The BIA agreed with the IJ that even

though conditions in civilian prisons were “far from ideal,”

Munyakazi “has not established that the conditions amount to

torture.” (J.A. 4).

      6In contrast, the IJ determined that conditions in military
detention facilities were much more severe and might rise to the
level of torture in some cases.



                                           12
       Munyakazi filed a timely petition for review of both of the

BIA’s       orders.    Munyakazi     also    filed      a     motion       for     stay     of

deportation, which we denied.

                                           II.

                                            A.

        Munyakazi first petitions for review of the denial of his

applications for asylum and withholding of removal. Our standard

of review in this area is familiar. To begin, because the BIA

adopted the IJ’s decision and provided additional reasons, we

review both decisions. 7 Hernandez-Avalos v. Lynch, 784 F.3d 944,

948 (4th Cir. 2015). We must uphold the decision to deny relief

unless it is “manifestly contrary to the law and an abuse of

discretion.” 8 U.S.C. § 1252(b)(4)(D). We review the agency’s

findings       of     fact   for   substantial        evidence,        a    “narrow       and

deferential” review, Djadjou v. Holder, 662 F.3d 265, 273 (4th

Cir.       2011),    under   which   the    agency’s        factual        findings       “are

conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary,” 8 U.S.C. § 1252(b)(4)(B). See also

Djadjou,       662    F.3d   at    273   (“Substantial         evidence          exists    to

support a finding unless the evidence . . . was such that any

reasonable adjudicator would have been compelled to conclude to



       7For ease of reference,                   we   refer   to   the       BIA    and     IJ
collectively as “the agency.”



                                            13
the contrary”) (internal quotation marks omitted). We review any

legal issues de novo. Marynenka v. Holder, 592 F.3d 594, 600

(4th Cir. 2010).

      The agency’s adverse credibility finding is also subject to

the   substantial       evidence       standard.       We       uphold     an        adverse

credibility     determination       if    the     agency         provides       specific,

cogent reasons that go to the heart of Munyakazi’s claim for

relief. 8   Djadjou, 662 F.3d at 274. “[O]missions, inconsistent

statements,     contradictory      evidence,         and    inherently        improbable

testimony      are     appropriate       bases        for       making    an         adverse

credibility determination.” Id. at 273.

                                         B.

      The agency found that Munyakazi was statutorily barred from

receiving     asylum    or     withholding       of    removal       under          what   is

commonly    called     the   “persecutor      bar.”        By   statute,      an      asylum

applicant      must    prove    that     he     is     a    “refugee.”          8     U.S.C.

§ 1158(b)(1)(A). A refugee is defined, inter alia, to exclude

any   person     who    “ordered,      incited,        assisted,         or     otherwise



      8This “heart of the claim” standard was modified by the
REAL ID Act of 2005, which permits an IJ to base a credibility
determination “without regard to whether [an inconsistency] goes
to   the   heart   of   the   applicant’s   claim.”   8   U.S.C.
§ 1158(b)(1)(B)(iii). Because Munyakazi’s application for asylum
was filed prior to the REAL ID Act’s implementation, that
standard is inapplicable here. Tassi v. Holder, 660 F.3d 710,
716 n.6 (4th Cir. 2011)



                                         14
participated       in    the    persecution      of    any     person   on   account    of

race, religion, nationality, membership in a particular social

group,     or     political       opinion.”        8    U.S.C.       §§ 1101(a)(42)(A)

(asylum); 1231(b)(3)(B)(i) (withholding of removal). If there is

evidence showing that Munyakazi participated in the persecution

of a particular social group (here, the Tutsis), then “he must

prove by a preponderance of the evidence that he is not barred

from relief on this ground.”               Higuit v. Gonzales, 433 F.3d 417,

420 (4th Cir. 2006). The “evidence” necessary to trigger the bar

is not high—it must only “raise the inference” of participation

in persecution. Alvarado v. Gonzales, 449 F.3d 915, 930 (9th

Cir.     2006).    In     addition,       “while       the   commission      of   actual

physical harm may be sufficient to bring an alien within the

persecution exception, it is not necessary.” Higuit, 433 F.3d at

421.   Accordingly,        if     there    is    evidence       that    Munyakazi      was

present and participating during the April 19 meeting at the

soccer field in Kirwa, the persecutor bar would apply regardless

of   whether      he    personally    committed         acts    of   violence     against

Tutsis.

       In his petition, Munyakazi argues there is no “evidence”

that he assisted or participated in the genocide and that he

proved by a preponderance of the evidence that he was not barred

from relief. We address each argument in turn.



                                            15
                                          C.

     In    finding     that   Munyakazi        was    a    persecutor,      the    agency

relied on the DHS interviews with: (1) TM, the genocidaire that

DHS tracked down independently of the Rwandan government; (2)

two survivors who said they saw Munyakazi at the soccer field

meeting;    (3)   a    survivor     who     was      hiding    in   her    house       when

Munyakazi came and told the Hutus to spare her because she was

married to a Hutu; (4) a survivor who was hiding when men came

to her house and told her Munyakazi had ordered them to take her

children and grandchildren; and (5) a survivor who hid in the

woods during the genocide and was told that Munyakazi had been

searching for her father in order to kill him. These interviews

clearly constitute sufficient “evidence” that Munyakazi assisted

or participated in the genocide.

     Munyakazi        launches      a   broad        assault     against        the     DHS

investigation     and    Special        Agent       Hyman,     asserting        that    the

interviews were flawed because the Rwandan government pressures

witnesses    to   implicate        people      in    the   genocide       and    the   DHS

investigators     relied      on    documents         supplied      by    the     Rwandan

government during the investigation. 9 But, the agency considered


     9 Munyakazi also asserts that his release in 1999 proves he
was not implicated in the genocide. Special Agent Hyman
testified that a Rwandan official said that many people were
released because the newly formed government lacked the ability
to bring cases to trial. As we have seen in other contexts, it
(Continued)
                                          16
this      argument      and   decided         not    to         consider      most     of     the

genocidaires’        interviews         on      this       basis.       The     agency        was

nonetheless permitted to weigh the testimony of Special Agent

Hyman that the survivors were being truthful and were fearful of

Munyakazi because the “evidence in the record regarding . . .

improper influence” of the survivors was “vague and far less

specific.”     (J.A.       930).    The   agency       was       likewise      permitted       to

credit the interview with TM because there was no evidence that

the government had the opportunity to influence his interview.

       DHS sent three investigators to Rwanda for several weeks to

investigate       the     allegations        against      Munyakazi.        While      the    DHS

investigators necessarily relied on Rwandan documents to start

their investigation, to the extent practicable they kept the

Rwandan prosecutors at arms-length and made interview requests

as   late    as    possible        to   minimize          the    possibility         of     undue

coercion.     It     is    unclear      what    Munyakazi          believes      the      agents

should     have    done     instead.      DHS,      instead        of   simply       accepting

Rwanda’s     allegations,          performed        its    own     investigation            under

less-than-ideal circumstances, and nothing in the record compels

us   to    find    that     the    agency      should       not     have      credited       that



is hardly rare for governments to find perpetrators many years
later. See Szehinskyj v. Attorney General, 432 F.3d 253, 254 (3d
Cir. 2005) (noting recent spate of denaturalization proceedings
against former Nazis based on new evidence).



                                               17
investigation.     Munyakazi’s        attempt    to   second      guess    the    DHS

investigation and survivor interviews is an effort to have us

reweigh the evidence in his favor, but our standard of review

“does not permit a re-weighing of the evidence.” Lin v. Holder,

736 F.3d 343, 351 (4th Cir. 2013). Accordingly, we hold that

substantial      evidence     supports     the   agency’s        conclusion      that

Munyakazi assisted and participated in the genocide.

                                         D.

     Given this conclusion, the burden shifts to Munyakazi to

show that he is not subject to the persecutor bar. The agency

concluded that Munyakazi failed to satisfy his burden, primarily

because   his     testimony     was    not    credible.     In     reaching      that

finding, the agency pointed to the discrepancies regarding:                       (1)

what Munyakazi was doing between April 19 and April 22; and (2)

his vague testimony about the genocide in Kirwa.

     Munyakazi contends that any confusion about dates in April

1994 did not go to the “heart” of his asylum claim. We disagree.

As the BIA cogently explained, these discrepancies were “central

to [his] claim because they address where he was and what he was

doing   during    the   genocide.”       (J.A.   770).    Munyakazi       testified

unequivocally that, other than a quick errand on the morning of

April 19, he did not leave his house between that day and April

22 and that he did not help obtain Hutu ID cards until after

that date. Two of the Tutsis submitted letters stating that he

                                         18
aided them on April 19 and April 20, and his wife testified that

he    went     out     for     some   time      the     morning     of    April    19.    It    is

possible that the letters refer to the dates Munyakazi helped

the women at his home, not at a government office, but if the

administrative “record plausibly could support two results: the

one     the        [agency]     chose     and      the     one    [Munyakazi]        advances,

reversal       is     only     appropriate        where    the    court     finds     that     the

evidence not only supports [Munyakazi’s] conclusion, but compels

it.”    Niang        v.   Gonzales,     492       F.3d     505,    511    (4th     Cir.     2007)

(internal quotation marks and alterations omitted). The record

supports the agency’s conclusion that the letters conflict with

his testimony.

        Thus,       nothing     compels      the       conclusion    Munyakazi       advances.

Munyakazi specifically testified he did not go to the government

offices with the Tutsis until after April 23, their letters said

otherwise, and his own wife testified that he took the list of

Tutsis he was obtaining ID cards for when he left the house on

April        19.     These     inconsistencies           “were      neither       trivial      nor

unconnected          to   the     core”      of        Munyakazi’s       claim.     Dankam     v.

Gonzales, 495 F.3d 113, 122 (4th Cir. 2007). Those dates in

April, and Munyakazi’s activities on those dates, are central to

whether Munyakazi assisted in the genocide.

        We    upheld      an    adverse      credibility          finding     under      similar

circumstances in Dankam. In Dankam, the IJ had focused on the

                                                  19
alien’s     “internal          inconsistencies”        regarding         three     alleged

arrests and detentions. Id. We explained that, “[b]ecause the

arrests are the key events underlying Dankam’s claim for asylum,

it follows that the details surrounding these arrests and the

dates on which they occurred are more than minor or trivial

details.”       Id.    (emphasis        added).     Likewise,       the    entirety        of

Munyakazi’s claim hinges on what he was doing on April 19 and

the     days     immediately           following;     discrepancies             about     his

activities on those days necessarily go to the heart of his

claim.

       Munyakazi’s        vague        testimony     about     the       genocide        also

supports       the    adverse     credibility       determination.         He    testified

that he saw virtually no outward signs of violence toward Tutsis

in    Kirwa—no       bodies,    no     destruction,    no    idea    who       started    the

alleged violence. Special Agent Hyman testified that Kirwa was a

small    agrarian       village        where   everyone      “seemed      to    know     each

other.” (J.A. 902). Hyman also testified that there were very

few Tutsis left in the village, and only one who was not married

to a Hutu. Munyakazi is a college professor, and it strains

credulity to believe that he was unaware that every Tutsi in his

small    village       was     being    butchered     even    as    he    sat    at     home.

Munyakazi points to language in the DHS investigation that the

genocide was not as severe in Kirwa’s province as elsewhere in

Rwanda, but that statement must be read against Special Agent

                                               20
Hyman’s testimony that there were few Tutsis remaining in Kirwa.

We give the agency “ample room” to “exercise common sense” in

making a credibility determination “even if the IJ cannot point

to” specific record evidence. Tewabe v. Gonzales, 446 F.3d 533,

540 (4th Cir. 2006) (internal quotation marks omitted). Common

sense      supports    the       agency’s    finding     that       Munyakazi’s      vague

testimony about widespread killings in a small village lacked

credibility.

      In      sum,      the       inconsistencies           regarding        Munyakazi’s

activities     on     April      19   and   the    following      days,    as   well      as

Munyakazi’s vague testimony about the genocide in Kirwa “add to

and create a cumulative effect that is sufficient to support” an

adverse      credibility          finding.        Dankam,     495     F.3d      at    123.

Substantial        evidence        thus     supports        the     agency’s       adverse

credibility finding.

      Here, upholding the adverse credibility finding requires us

to   deny    the     petition      for    review.    With    that     finding    intact,

substantial        evidence        supports       the    BIA’s       conclusion       that

Munyakazi cannot meet his burden. Without his own testimony,

Munyakazi is left with the five similarly worded letters from

the Tutsis he purportedly assisted and the general testimony

from his witnesses regarding conditions in Rwanda and alleged

coercion on the part of the Rwandan government. None of this

testimony      compels       a    conclusion      that   Munyakazi        showed     by    a

                                             21
preponderance      of    the     evidence      that      he    did    not      assist    or

participate in the genocide.

       Accordingly, we conclude that substantial evidence supports

the   agency’s     ultimate       conclusion      that     Munyakazi        assisted     or

participated in the Rwandan genocide. Given that conclusion, the

agency     correctly      determined      that       Munyakazi       is     barred      from

receiving asylum or withholding of removal. 10

                                         III.

      Munyakazi     also       challenges      the       agency’s     denial     of      his

request for protection under CAT. “[O]ur standard of review is

deferential to the BIA,” and we review the denial of Munyakazi’s

claim for substantial evidence. Mulyani v. Holder, 771 F.3d 190,

200 (4th Cir. 2014). Thus, the “administrative findings of fact

are    conclusive       unless    any    reasonable           adjudicator      would      be

compelled to conclude” otherwise. 8 U.S.C. § 1252(b)(4)(B). To

establish    relief      under    CAT,   Munyakazi        must    show    it    is    “more

likely than not that he . . . would be tortured if removed to

the   proposed     country       of   removal.”      8    C.F.R.     § 1208.16(c)(2).

Torture is relevantly defined as “any act by which severe pain

or    suffering,    whether       physical      or    mental,        is   intentionally

      10Munyakazi also raises a constitutional argument—that the
DHS investigation violated his due process rights because he
could not confront the witnesses. Munyakazi failed to raise this
claim to the BIA, and that failure deprives us of jurisdiction
to consider it. 8 U.S.C. § 1252(d)(1).



                                          22
inflicted on a person.” 8 C.F.R. § 1208.18(a)(1). Evidence of

past torture is relevant under CAT, but “it does not create a

presumption that an applicant will be tortured in the future.”

Suarez-Valenzuela v. Holder, 714 F.3d 241, 245 (4th Cir. 2013).

Although     Munyakazi          is    barred        from     receiving      asylum     or

withholding of removal, that bar does not preclude the deferral

of his removal under CAT. 8 C.F.R. §§ 1208.16(c)(4), 1208.17(a).

In addition, the agency is required to review “all the evidence

relative”    to    a    CAT   claim     and    an   adverse    credibility      finding

“cannot    alone       preclude      protection      under    the   CAT.”     Camara   v.

Ashcroft, 378 F.3d 361, 372 (4th Cir. 2004).

     The agency found that Munyakazi suffered harsh treatment

during     his    previous      incarceration,         and     that    conditions      in

Rwandan military facilities may rise to the level of torture.

However, the agency found that genocide perpetrators were held

in   civilian,         not    military,       detention      facilities       and    that

conditions       in     those     facilities,        while     harsh     by    American

standards, do not amount to torture. 11


     11 The agency relied on In re J—E—, 23 I&N Dec. 291 (BIA
2002), in concluding that Rwandan civilian prison authorities
lacked the specific intent to inflict severe physical mental
pain or suffering on civilian detainees. The BIA’s decision in
In re J—E— “requires a CAT claimant to demonstrate that the
state actor who mistreats him desires to cause his severe pain
and suffering, and is not merely negligent nor reckless as to
the risk.” Oxygene v. Lynch, 813 F.3d 541, 548 (4th Cir. 2016).
In Oxygene, we held that the BIA’s interpretation of CAT’s
(Continued)
                                              23
      Again,      our    standard      of      review           mandates    that     we     deny

Munyakazi’s petition for CAT relief because substantial evidence

supports the agency’s findings and nothing in the record compels

the    opposite         conclusion.         The          available       documentary         and

testimonial       evidence—including            testimony         from     Munyakazi’s       own

witness, Babonampoze—tended to establish that persons held on

state security and terrorism charges were subjected to barbarous

treatment 12 in military facilities but that persons charged with

genocide    crimes       were   held      in    civilian          detention     facilities.

Likewise,    the     available      State       Department          and     United    Nations

documents indicated that conditions in civilian prisons do not

rise to the level of torture. Munyakazi asserts that his charges

are politically motivated and based on his status as a moderate,

opposition       Hutu.   Even     assuming          he    is    correct,    that     does    not

change     the    fact     that     the     actual             charges     pending    against

Munyakazi are not political crimes, but genocide crimes, and

that genocide defendants are not held in military facilities. 13




intent requirement is entitled to deference, and we see no error
in its application here.
      12For example, Babonampoze testified that he was beaten,
placed in a hole underground while smoke was blown into it, and
burned with fire. On another occasion he was tied to a pillar
outside overnight in the cold.
      13Munyakazi also discusses the local Gacaca tribunals—
courts that were created specifically to deal with the multitude
(Continued)
                                               24
Munyakazi did not show that he is a member of the opposition UDF

or that Rwanda is investigating him for opposition or terrorism

activities. The record evidence does not compel the conclusion

that Munyakazi will be held in a military detention facility. To

the contrary, the record amply supports the agency’s finding

that Munyakazi is likely to be held in civilian prison and tried

in civilian courts.

     Accordingly, we conclude that substantial evidence supports

the denial of Munyakazi’s request for CAT protection.

                               IV.

     For the foregoing reasons, Munyakazi’s petition for review

is denied.

                                                  PETITION DENIED




of genocide cases. Those courts, however, were closed in 2012
and the record does not show that Munyakazi would be before any
Gacaca court.



                               25
