                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                     May 31, 2007
                            FOR THE FIFTH CIRCUIT
                            _____________________              Charles R. Fulbruge III
                                                                       Clerk
                                 No. 05-60851
                            _____________________

MONIQUE VULA SHAKENA KOMPANY,

                                                               Petitioner,

                                   versus

ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,

                                                      Respondent.
_________________________________________________________________

              Petition for Review of an Order of the
                   Board of Immigration Appeals
                        BIA No. A96 274 160
_________________________________________________________________

Before JONES, Chief Judge, and JOLLY and STEWART, Circuit Judges.

PER CURIAM:*

     Monique Vula Shakena Kompany appeals the dismissal by the

Board    of   Immigration    Appeals   (“BIA”)   of   her   appeal    of   the

Immigration Judge’s (“IJ”) denial of her application for asylum,

withholding of removal, and relief under the Convention Against

Torture (“CAT”).     Claiming that she was imprisoned and brutally

raped for her political opinions and associations, Kompany argues

that substantial evidence in the record does not support the IJ’s

finding that Kompany is not credible.            Kompany presents a very

sympathetic case.    We are not, however, finders of fact.        That task


     *
       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this opinion should not be published and is not precedent except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.
belongs to the BIA and to the IJ, which discredited her testimony

and   rejected    her   claims.    Our   sympathy   for   her   story,

notwithstanding, we are bound by the rules and the precedents and

must DENY the petition.

                                  I.

      Kompany testified to the following:    She is a citizen of the

Democratic Republic of Congo (“Congo”), a country rife with civil

war and military unrest.    Her husband, now deceased, was a founding

and active member of “Mouvement de Solidarite pour la Democratie et

la Protection des Enfants,” which, translated, means “Solidarity

Movement for Democracy and Child Protection” (“SMDCP”).         SMDCP

sought to return the majority age from 14 back to 18 by educating

the public and voicing their concerns to public officials.      SMDCP

was founded by a group of lawyers and doctors, that is, by parents

whose children had been raped or enrolled by force in the military.

SMDCP held meetings once a month, in hiding.

      Kompany last saw her husband alive in Congo in 1998 when he

dropped her off at work and drove to the hospital where he worked

as a physician.     On his way to the hospital, he saw a group of

people gathered around a twelve-year-old girl lying on the ground,

bleeding.   Kompany’s husband approached the girl, attempting to

save her life.    A fourteen-year-old military soldier told him to

leave because it was none of his business, and the soldier shot and

killed Kompany’s husband.



                                   2
     Kompany eventually obtained the arrest of the fourteen-year-

old soldier who murdered her husband.          The soldier was in prison

only briefly and then disappeared.           One day, Kompany returned to

her house after Sunday services to find a threat note reading: “YOU

ARE DEAD.”       She fled with her family to her uncle’s house and

stayed there for a month until she read in the newspaper that the

soldier who murdered her husband had been killed while stealing in

a house.

     Although Kompany’s husband was a founding and active member of

SMDCP, Kompany did not begin attending SMDCP meetings until 1999,

after her husband’s death.      Although she did not consider herself

a member, she was a “sympathizer” and assisted SMDCP by using her

work printer and copier to publish documents for SMDCP.                  Kompany

also provided SMDCP with ideas for helping children and women,

ideas such as making baskets and preparing salted fish to sell.

     On May 12, 2002, Kompany was publishing documents for SMDCP at

work when she heard a commotion outside the building.               She got up

to see what was causing the commotion, when military soldiers

entered and ordered her and her colleagues to sit down.                     The

soldiers searched her office and found the SMDCP documents.                 The

soldiers arrested her and two of her colleagues and took them to

prison.

     At    the   prison,   soldiers   beat   Kompany      with   “concentrated

plastic,” leaving scars on her back.          One of the weapons pierced

Kompany’s    right   index   finger   and    came   out    the   other    side,

                                      3
permanently    injuring    it.    The       soldiers    tied   Kompany’s   hands

together with thick string, permanently injuring her wrists.                They

also beat her with an electric cord.

     The soldiers imprisoned Kompany for a month.                   They raped

Kompany repeatedly,       at   least   three    times    per   week.   Kompany

testified that they each took their turn, and they were different

soldiers each time. According to Kompany’s testimony, “[t]he place

they took was [sic] all dark, black.           It was a small area, we were

numerous.   When they called you to get a coffee, it depended on the

day, but maybe one or two performed the act.”                   In her asylum

application, she stated: “After two weeks I was allowed to go

outside the cell to cook and clean for the gaurds [sic], who when

ever [sic] they wanted would point their gun at you while their

friend is violently raping you.         Some of them are younger than my

kids but what can you do?        You cry you feel bad you are hurt but

before you recover they do it again.”

     The soldiers fed Kompany and the other prisoners twice each

week.   Kompany and the other prisoners took showers once or twice

per week.     The prison was “very dirty,” causing extensive black

blemishes, like pimples, on Kompany’s skin: “It, it was starting,

my skin was just eating me because of the, the dirt we were, it was

the sanitary conditions that caused it, my skin to, to just break

out like this and we went to the bathroom, you know, on the floor,

on the ground.”



                                        4
       At   one   point,    soldiers    placed      a   woman    who    was    bleeding

severely in Kompany’s cell.           The woman bled to death.           The smell of

the corpse became unbearable, and she and other prisoners asked the

soldiers to remove the body. It is unclear what precisely occurred

at this point, for Kompany testified that the soldiers proceeded to

beat    her   and   hit    her   in   the   stomach,     causing       her    to   bleed

excessively.        She testified that she “was swelling everywhere

because of the beatings.”              However, she stated in her written

statement and asylum application that she was raped violently by

two guards, causing her to bleed excessively.                    Regardless of the

cause, she endured the pain for four days, and on the fifth day,

she    hemorrhaged    and    lost     consciousness.            When    she    regained

consciousness, she found herself in Ngaliema Hospital left to die.

In Ngaliema Hospital, Kompany was treated by Dr. Nzambi, a friend

of her late husband, and found out she was pregnant.                         Dr. Nzambi

feigned Kompany’s death and paid off a guard.                          Soldiers later

visited Kompany’s house and neighborhood to see if she was really

dead.

       According to Kompany’s testimony before the IJ, she was taken

to the hospital on July 13, 2002.               She testified that she spent 17

days at the hospital, and that on July 31, Dr. Nzambi gave her a

passport and took her to the U.S. Embassy to obtain a tourist visa

to the United States.             She testified that she stayed at Dr.

Nzambi’s house and left Congo on August 15, 2002.                  Two days later,

on August 17, Kompany arrived in the United States.                     In the United

                                            5
States, Kompany applied for asylum, withholding of removal, and

relief under CAT, with the aid of an acquaintance who translated

and filled out the application for her.

     Before the IJ, Kompany presented her own testimony and the

testimony of Lokwekim Matadi, a lawful permanent resident of the

United States.   Matadi attended school with Kompany’s late husband

and left Congo in 1989.     In 1997, Matadi traveled to Congo and

stayed there nine months.   During his nine months in Congo, Matadi

visited Kompany’s late husband’s home three or four times.    During

his visits, Matadi met Kompany, and at the immigration hearing,

Matadi identified Kompany as the wife of his late friend, the woman

he met while visiting the home of his late friend.           He also

testified that the couple had two children at the time, confirming

an earlier statement by Kompany alleging the same.      Furthermore,

Matadi testified that Kompany’s late husband was involved in an

organization to protect and help children.        He identified the

organization as “Movement for Child Development and Protection.”

Matadi further testified that Kompany helped promote the agenda of

the organization after her husband’s death, but apparently this was

not based on firsthand knowledge, because he also testified that he

had no contact with Kompany after he left Congo in 1997 until he

saw her on January 13, 2004 at the hearing before the IJ.

     Ultimately, the IJ found Kompany not credible and therefore

rejected her claims for relief.       In his opinion, the IJ stated:

“After observing the respondent’s demeanor while testifying, and

                                  6
comparing her testimony with her written application for asylum,

the truth of which she swore to, the Court finds the respondent is

not credible.” Specifically, the IJ noted numerous inconsistencies

in Kompany’s testimony, written statement, and asylum application,

including:    her level of involvement in SMDCP; the identity of the

founders of SMDCP; the year of Kompany’s arrest; the details of

Kompany’s    arrest;    the   details    of    Kompany’s     stay    at    Ngaliema

Hospital, visit to the U.S. Consulate, and subsequent hiding at Dr.

Nzambi’s house; and her failure to mention her cousin Gisele

Nzazi’s death in her written statement and asylum application. The

IJ also discredited Kompany’s story because she failed to seek

treatment for multiple forced sex partners after she arrived in the

United States.         In   this   light,     the   IJ   acknowledged      Matadi’s

testimony but found it insufficient to rehabilitate Kompany’s

testimony.        Additionally,    the   IJ    found     Kompany’s     documentary

evidence     to   be   of   little    evidentiary        value   and      therefore

insufficient to overcome its adverse credibility determination.

Because the IJ found Kompany not credible, he rejected all of her

claims for relief.

     Kompany appealed the IJ’s decision to the BIA and argued,

inter alia, that the IJ’s adverse credibility determination was

clearly erroneous.1         The BIA affirmed in a one-page order.                On

     1
       Because Kompany argued the general issue of credibility
before the BIA, she has exhausted her administrative remedies. See
Wang v. Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001) (“An alien
fails to exhaust his administrative remedies with respect to an

                                         7
appeal, Kompany petitions this Court to vacate the BIA’s order,

arguing that substantial evidence does not support the IJ’s finding

that she is not credible.

                                          II.

       We have authority to review an order of the BIA and may

consider the IJ’s underlying decision only if it impacted the BIA’s

decision.         Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997)

(citing Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)).                          Here, the

BIA dismissed Kompany’s appeal of the IJ’s decision denying her

request for asylum, withholding of removal, and protection under

CAT.        The    BIA   concluded     that       the      IJ’s   adverse     credibility

determination         was    not    clearly       erroneous.         Because     the   BIA

essentially adopted the IJ’s decision, we must review the IJ’s

decision.         See Mikhael, 115 F.3d at 302.

       On   a     petition    for   review        of   a   BIA    decision,    we   review

questions of law de novo and factual findings for substantial

evidence.         Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir.

2001).      “Under substantial evidence review, we may not reverse the

BIA’s factual determinations unless we find not only that the



issue when the issue is not raised in the first instance before the
BIA-either on direct appeal or in a motion to reopen.” (citing
Goonsuwan v. Ashcroft, 252 F.3d 383, 388-89 (5th Cir. 2001))).
Accordingly, the issue of credibility is properly before this
Court. See 8 U.S.C. § 1252(d)(1) (“A court may review a final
order of removal only if the alien has exhausted all administrative
remedies available to the alien as of right[.]”).



                                              8
evidence supports a contrary conclusion, but that the evidence

compels it.”    Chun, 40 F.3d at 78.        This means “the alien must show

that the evidence was so compelling that no reasonable factfinder

could conclude against it.”          Id.

     “Credibility determinations are given great deference.”                Efe

v. Ashcroft, 293 F.3d 899, 905 (5th Cir. 2002).                 “[I]t is the

factfinder’s duty to make determinations based on the credibility

of the witnesses.”       Chun, 40 F.3d at 78 (citing Vasquez-Mondragon

v. INS, 560 F.2d 1225, 1226 (5th Cir. 1977)).              “The panel cannot

replace   the   Board    or   IJ’s    determinations      concerning   witness

credibility or ultimate factual findings based on credibility

determinations with its own determinations.”             Efe, 293 F.3d at 905

(citing Vasquez-Mondragon, 560 F.2d at 1226); see Chun, 40 F.3d at

78. “As we have previously made emphatically clear, ‘[w]e will not

review    decisions     turning   purely      on   the   immigration   judge’s

assessment of the alien petitioner’s credibility.’”             Chun, 40 F.3d

at 78 (citing Mantell v. INS, 798 F.2d 124, 127 (5th Cir. 1986)).

This is not an all-inclusive rule, however, for “we have not read

[Chun] to mean that credibility determinations that are unsupported

by the record and are based on pure speculation or conjecture will

be upheld.”     Mwembie v. Gonzales, 443 F.3d 405, 410 (5th Cir.

2006).2     Nevertheless,     like    other    factual    determinations,   “a

     2
       Accordingly, in limited instances, we have granted a
petition and remanded for a reconsideration of credibility. See,
e.g., Zhongne Li v. Gonzales, 184 Fed.Appx. 400 (5th Cir. 2006)
(unpublished); Guan v. Ashcroft, 121 Fed.Appx. 563 (5th Cir. 2005)

                                        9
credibility determination may not be overturned unless the record

compels it.”    Lopez De Jesus v. INS, 312 F.3d 155, 161 (5th Cir.

2002).

                                    III.

     The question before us is whether the record “compels” the

conclusion that the IJ erred in finding Kompany not credible.              See

Lopez De Jesus, 312 F.3d at 161.           We conclude that it does not.

The IJ correctly noted inconsistencies in Kompany’s accounts about

the year of her arrest and the details surrounding her stay at

Ngaliema Hospital,    her   visit    to    the   U.S.   Consulate,   and   her

subsequent hiding at Dr. Nzambi’s house.            As to the year of her

arrest, Kompany stated in her asylum application and written

statement that she was arrested on May 12, 2002, and although she

ultimately testified that 2002 was the correct year, she initially

testified twice, incorrectly, that the year was 1998.3           Similarly,

Kompany testified and indicated in her written statement that she

arrived at the hospital on July 13, 2002, whereas her asylum

application listed the date as July 31, 2002.              As to the other

details, Kompany stated in her asylum application that she spent 5

days in the hospital and 2 weeks at Dr. Nzambi’s brother’s house.

In her written statement, she stated that she spent 5 days at the


(unpublished); cf. Mwembie, 443 F.3d at 409-14 (rejecting the IJ’s
adverse credibility determination but denying the petition on other
grounds).
     3
         The IJ also stated that Kompany testified that the year was
2000.    We find no such testimony in the record.

                                     10
hospital and 6 weeks at Dr. Nzambi’s brother’s house.                         At the

hearing, she testified that she spent 17 days at the hospital and

5 days at Dr. Nzambi’s house.             In our view, these inconsistencies

seem peripheral to her fundamental claims of torture on grounds of

political association, and seem explainable by the trauma she

suffered and by translation and other minor errors.                      Although we

believe these inconsistencies may be explainable and are on the

outer perimeter of materiality, they nevertheless support the IJ’s

credibility determination, and the IJ is entitled to rely on them.

Thus, we cannot say that “no reasonable factfinder could conclude

against [Kompany].”            See Chun, 40 F.3d at 78.        Nor can we say that

the evidence compels a conclusion contrary to the factfinder’s, and

accordingly,          we    conclude   that   there   is     substantial    evidence

sufficient to support the IJ’s adverse credibility determination.

See id.4

       We do not reach this conclusion lightly. The events described

by Kompany, if true, are atrocious.                 On the record before us, we

would likely reach a different conclusion, for we view many of the

IJ’s       findings    of    inconsistency     as   readily    explainable.      For

example,       while        the   IJ   concluded      that     Kompany     testified

       4
       The REAL ID Act of 2005 altered the standard of review for
credibility determinations. See § 8 U.S.C. § 1158(b)(1)(B). The
Act does not apply to Kompany’s application, however, because she
filed her application prior to May 11, 2005, the effective date of
the Act.     The Act specifically limits its applicability to
applications made on or after its effective date. See REAL ID Act
§ 101(h)(2), Pub. L. 109-13, 119 Stat. 302, 305; see also Dhima v.
Gonzales, 416 F.3d 92, 95 n.3 (1st Cir. 2005).

                                          11
inconsistently about her level of involvement in SMDCP, we read the

record to indicate that she consistently described herself not as

a “member” but as a “sympathizer” who only attended meetings,

published documents, and provided SMDCP with ideas for helping

children and women.    Furthermore, any misunderstandings about her

level of commitment in SMDCP appear to have arisen out of a

misunderstanding about whether the pronoun “you” in questions by

counsel referred to Kompany alone or to SMDCP as a whole.

       Similarly, we see no inherent inconsistency in Kompany’s

explanation of who founded SMDCP.         In her asylum application and

written statement, Kompany asserted that SMDCP was founded by

parents of children raped or drafted by the military at a young

age, whereas she testified that it was founded by lawyers and

doctors, including her husband.        These assertions by Kompany are

not necessarily inconsistent, for some of the lawyers and doctors

could have been the parents of children raped or drafted at a young

age.

       As to the details of Kompany’s arrest, it seems to us that

Kompany consistently explained in her testimony, written statement,

and asylum application that she was at work and heard noises

outside; she    got   up   to   investigate   but   soldiers   entered   the

building and commanded her to go back and sit down; and she was

taken away by the soldiers after they found the SMDCP documents.

To us, the inconsistencies perceived by the IJ were not necessarily

inconsistencies but only differences in the number of details that

                                     12
Kompany included in each account.     The more important issue to us

is that Kompany consistently stated in all three accounts that the

soldiers arrested her after they saw the SMDCP documents she had

published, thus explaining the reason for her arrest.

     Nor do we conclude that Kompany’s credibility is diminished by

her failure to mention in her asylum application and written

statement the death of her cousin Gisele Nzazi and for failing to

show that Nzazi died on account of “a ground enumerated within the

Act.” The record clearly demonstrates that Kompany never argued or

alleged that her right to asylum or withholding of removal or

relief under CAT was related to Nzazi’s death.         Instead, she

mentioned Nzazi’s death only to respond to a specific question by

counsel asking whether any of her other relatives had experienced

trouble in Congo.      Because Nzazi’s death seems immaterial to

Kompany’s claims for relief, we fail to see why her failure to

mention his death in her written statement or asylum application

affects her credibility.

     Finally, we do not understand why the IJ discredited Kompany’s

story because she failed to seek medical treatment for multiple

forced sex partners.    It is unclear to us how Kompany, under her

particular circumstances, would have known that she should seek

such treatment or how she would have obtained such treatment.

     Nevertheless, although we might well have reached an opposite

conclusion if we were to sit as the factfinder in this case, that

role is not ours.   See Chun, 40 F.3d at 78 (“it is the factfinder’s

                                 13
duty to   make   determinations   based   on   the   credibility   of   the

witnesses”). We are unable to “replace the ... IJ’s determinations

concerning witness credibility or ultimate factual findings based

on credibility determinations with [our] own determinations.”           See

Efe, 293 F.3d at 905.      Because the evidence does not compel a

contrary conclusion, see Chun, 40 F.3d at 78, we must affirm the

IJ’s adverse credibility determination.         Accordingly, we cannot

grant Kompany the relief she seeks.

                                  IV.

     For the foregoing reasons, we deny Kompany’s petition for

review.

                                                        PETITION DENIED.




                                  14
