     Case: 12-60719      Document: 00512512847         Page: 1    Date Filed: 01/27/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                          United States Court of Appeals
                                                                                   Fifth Circuit

                                                                                 FILED
                                      No. 12-60719                        January 27, 2014
                                                                            Lyle W. Cayce
THIERRY NKURUNZIZA,                                                              Clerk


                                                 Petitioner
v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                 Respondent



                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A098-878-550


Before BARKSDALE, PRADO, and HAYNES, Circuit Judges.
PER CURIAM:*
       The underlying proceedings for this pro se petition have a long and even
more convoluted history. Primarily at issue is whether substantial evidence
supports the decisions by the Board of Immigration Appeals (BIA) that Thierry
Nkurunziza, a native and citizen of Burundi, is not entitled, based on claimed
changed country conditions, to asylum, withholding of removal, or relief under
the Convention Against Torture (CAT). DISMISSED in PART; DENIED in
PART.



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 12-60719


                                      I.
      Nkurunziza entered the United States with a nonimmigrant B-2 visitor
visa in April 2005, authorizing him to stay until 19 October 2005. He remained
beyond that date, however, and, that November, applied for asylum,
withholding of removal, and protection under the CAT. His written statement
in support of such relief provided: he was a member of the Tutsi tribe; he was
attending boarding school at Lycee de Kibimba when genocide, following the
assassination of the Burundi president, began in October 1993; and, when most
of the Tutsi students at his school were murdered, he was off-campus, but had
personal knowledge of what happened and could identify the Hutu faculty
responsible for the massacre. His statement further provided: later, when the
Burundi government released political prisoners, two members of the school’s
faculty involved in the Lycee de Kibimba massacre were among those released;
after their release, Nkurunziza began receiving verbal threats, causing him to
flee 80 miles from his home; after he did so, his cousin (who resembled
Nkurunziza) was shot and Nkurunziza’s girlfriend was attacked while driving
his car; and these incidents prompted him to move again, after which he
decided he could no longer remain safely in Burundi.
      An asylum officer declined to grant the application. Accordingly, the
Department of Homeland Security (DHS) served Nkurunziza on 7 December
2005 with a notice to appear (NTA), charging him with removability as an alien
present in the United States for a period longer than authorized. Nkurunziza
appeared before an Immigration Judge (IJ), admitted the facts in the NTA, and
conceded removability. Over the next few months, the IJ held a hearing on
Nkurunziza’s asylum application, issued a 6 April 2006 decision denying the
relief sought, and ordered him removed to Burundi. Nkurunziza’s appeal to
the BIA was dismissed through its 23 October 2007 decision. Nkurunziza did
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                                No. 12-60719
not seek a petition for review from this court; he did, however, remain in the
United States illegally.
      United States Immigrations and Customs Enforcement apprehended
Nkurunziza in October 2008. In February 2009, he filed a pro se motion to
reopen, based on claimed changed country conditions, for which he submitted
two letters allegedly from his brother, dated 15 May 2007 and 18 August 2008.
Those letters stated that the family home had been visited by one of
Nkurunziza’s former teachers. In April 2009, the BIA granted the untimely
motion to reopen and remanded the matter to an IJ for further proceedings.
      A hearing was held before the IJ on 27 January 2010. The sole issue
considered was changed country conditions vel non.            At the hearing,
Nkurunziza testified: one of his former teachers had gone to Nkurunziza’s
family home twice; and the former teacher, previously a member of the
FRODEBU party, was now a member of the CNDD-FDD party, which defeated
FRODEBU in the 2005 national elections. The IJ determined no testimony at
the hearing on changed country conditions affected the BIA’s prior decision
and, therefore, denied relief. In doing so, the IJ considered Nkurunziza’s two
alleged letters from his brother, but noted they lacked envelopes to determine
their origin. The IJ also noted Nkurunziza was unable to provide any other
corroborating evidence.
      Nkurunziza appealed the IJ’s 27 January 2010 decision to the BIA.
With his brief, Nkurunziza submitted as new evidence a letter from his sister,
dated February 2010, in which she explained their brother had been murdered
by Burundi government officials. Through its 27 October 2010 decision, the
BIA affirmed the IJ’s denying Nkurunziza’s request for asylum or withholding
of removal based on changed country conditions, explaining:




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                                 No. 12-60719
            [Nkurunziza] offered evidence to the effect that his
            brother was brutally murdered for the same mix of
            ethnic and political reasons that [Nkurunziza] was
            pursued. He further asserts that a former teacher of
            his, who now belongs to the political party in power,
            came to his house to look for him in connection with
            his ability to testify concerning a certain matter, with
            a view to subjecting him to a similar fate. . . .
            [R]egardless of the former teacher’s interest . . .
            [Nkurunziza] cannot demonstrate that such tribal and
            political affiliations would serve as “one central
            reason” for his persecution. Rather, [Nkurunziza]
            fears persecution on account of his potential testimony
            against the perpetrators of a 1993 massacre against
            students. Likewise, [Nkurunziza] has submitted no
            evidence establishing that he would be singled out for
            persecution.

On the other hand, the BIA remanded the matter for the IJ to conduct properly
the two-prong inquiry necessary for CAT claims.
      Pursuant to that remand, on 31 January 2011, the IJ issued a
supplemental    decision   addressing   the CAT     claim     and   summarizing
Nkurunziza’s testimony from the 27 January 2010 hearing before the IJ. In
that supplemental decision, and as discussed infra, the IJ noted erroneously:
“[Nkurunziza] does not contend this former teacher was involved in the
criminal act that he witnessed. Rather, [he] contends the individual had been
in jail at the time of the act but is sympathetic to the individuals who carried
out the crimes”.     It appears, however, based on the testimony cited and
summarized, that the IJ misunderstood Nkurunziza. Nevertheless, the IJ
concluded Nkurunziza only established his former teacher, now a police officer,
went to Nkurunziza’s home looking for him because the Burundi government
was notified of his arrival, after which Nkurunziza did not appear.
Consequently, the IJ ruled that Nkurunziza “failed to establish that it is more
likely than not that he would be tortured . . . if removed to Burundi”. The IJ
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                                  No. 12-60719
also concluded Nkurunziza attempted an inferential leap in asserting the
reason “the Burundi government cares whether he returns . . . is because of
what he saw some 17 years ago. The evidence adduced does not support such
a conclusion”. Because Nkurunziza failed to establish what was necessary for
the first prong of the CAT inquiry (whether, if the alien is removed, it is more
likely than not he will be tortured), the IJ did not reach the second prong
(whether such torture would be by, or at the instigation of, a public official or
another acting in an official capacity).
      Nkurunziza appealed to the BIA; on 21 June 2011, it affirmed the IJ’s
supplemental decision and dismissed the appeal. Nkurunziza claimed the IJ
violated his due process rights by issuing the supplemental decision without
affording him a hearing and opportunity to present his sister’s letter as
evidence. In its decision, the BIA concluded the evidence showed Nkurunziza’s
brother was killed on 30 April 2009; and, therefore, Nkurunziza could have
presented this evidence at the 27 January 2010 hearing before the IJ. At that
time, the BIA did not reconsider Nkurunziza’s claims regarding asylum and
withholding of removal. On 15 December 2011, the BIA denied a motion to
reconsider.
      After Nkurunziza petitioned for review by our court regarding the 21
June 2011 decision, the Government moved for remand to the BIA, asserting
it had failed to address Nkurunziza’s claim for CAT protection. Along this line,
the BIA must have the first opportunity to address the CAT claim before this
court can consider it. As a result, in January 2012, our court remanded the
matter to the BIA.
      On 23 August 2012, the BIA issued a decision addressing Nkurunziza’s
CAT claim and concluding he failed to establish he was entitled to relief. The
BIA explained that, although Nkurunziza believed “Burundi government
officials [were] looking for him because he witnessed the massacre in 1993”,
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                                 No. 12-60719
Nkurunziza did not present sufficient evidence to support this allegation. The
BIA explained further:
            [Nkurunziza] testified that a government official
            visited his family home, [but] he did not claim that this
            person mentioned the 1993 massacre.             Further,
            [Nkurunziza] has presented insufficient evidence to
            show that it is more likely than not that the official is
            seeking him in order to subject [Nkurunziza] to
            torture.

                                       II.
      Although not referenced by date or decision, Nkurunziza essentially
seeks review by our court of:        the 6 April 2006 IJ decision (denying
Nkurunziza’s original applications for asylum, withholding of removal, and
CAT protection); the 23 October 2007 BIA decision (affirming the 6 April 2006
IJ decision); the 27 January 2010 IJ decision (denying Nkurunziza’s renewed
asylum, withholding of removal, and CAT applications, pursuant to claimed
changed country conditions); the 27 October 2010 BIA decision (affirming the
IJ’s 27 January 2010 decision as to Nkurunziza’s application, based on changed
country conditions, for asylum or withholding of removal, but remanding as to
Nkurunziza’s CAT claim on that basis); the IJ’s 31 January 2011 supplemental
decision (denying Nkurunziza’s CAT claim); the 21 June 2011 BIA decision
(affirming the IJ’s 31 January 2011 supplemental decision and addressing
Nkurunziza’s contention on appeal that the IJ violated his due process rights);
the BIA’s 15 December 2011 denial of his motion to reconsider its 21 June 2011
decision; and the 23 August 2012 BIA decision (addressing Nkurunziza’s CAT
claim subsequent to this court’s 23 January 2012 remand).
      Because Nkurunziza failed timely to seek review of the BIA’s 23 October
2007 decision, or the underlying 6 April 2006 decision by the IJ, jurisdiction is
lacking to do so. Therefore, we review only the BIA’s decisions, after this

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                                   No. 12-60719
matter was re-opened, regarding changed country conditions. The issues are
whether: (1) substantial evidence supports the BIA’s ruling Nkurunziza is not
entitled, based on changed country conditions, to asylum, withholding of
removal, or relief under CAT; (2) the BIA erred in not remanding the matter
to the IJ when Nkurunziza introduced new evidence on appeal to the BIA to
support his claims for relief; and (3) the BIA properly denied Nkurunziza’s
motion to hold this matter in abeyance, pending a ruling on his request for
prosecutorial discretion by DHS to administratively close his removal
proceedings.
      Generally, this court reviews only the final decision of the BIA. Zhu v.
Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). When its decision is affected by
the IJ’s ruling, however, the IJ’s decision is also reviewed.            Id.   Legal
conclusions are reviewed de novo; factual findings, for substantial evidence.
Majd v. Gonzales, 446 F.3d 590, 594 (5th Cir. 2006) (citation omitted). Under
the substantial evidence standard, “reversal is improper unless we decide ‘not
only that the evidence supports a contrary conclusion, but [also] that the
evidence compels it’”. Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005)
(alteration in original) (quoting Zhao v. Gonzales, 404 F.3d 295, 306 (5th Cir.
2005)). In that regard, “[w]e will not substitute our judgment for that of the
BIA or IJ ‘with respect to the credibility of witnesses or ultimate factual
findings based on credibility determinations’”. Zhao, 404 F.3d at 306 (quoting
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)). “The alien bears the burden of
proving the requisite compelling nature of the evidence.” Majd, 446 F.3d at
594 (citation omitted).
                                         A.
      To be eligible for asylum, an “alien must demonstrate that he has been
persecuted or has a well-founded fear of persecution on account of one of the
factors listed in [8 U.S.C.] § 1101(a)(42)(A)”, although “the decision to grant . . .
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                                  No. 12-60719
asylum is within the IJ’s discretion”. Zhao, 404 F.3d at 306. “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.’”
Id. at 307 (quoting Eduard v. Ashcroft, 379 F.3d 182, 189 (5th Cir. 2004)).
Persecution has been described as “[t]he infliction of suffering or harm, under
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”. Id. (alteration in original) (citing Abdel-Masieh v. INS, 73 F.3d
579, 583–84 (5th Cir. 1996)). For a “well-founded fear of future persecution,
the alien’s subjective fear will satisfy this standard if a reasonable person in
[his] circumstances would fear persecution if [he] were to be returned to [his]
native country”.     Id. (alterations in original) (internal quotation marks
omitted) (quoting Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
      “An application for asylum is automatically considered as a request for
withholding of [removal]”. Ralev v. INS, 39 F.3d 320, No. 94-40027, 1994 WL
612561, at *4 (5th Cir. 25 Oct. 1994) (unpublished) (citing 8 C.F.R. § 208.3(b)).
The standard for withholding of removal is more stringent than the standard
for asylum. Id. (citing Adebisi v. INS, 952 F.2d 910, 913 (5th Cir. 1992)).
Therefore, failure to satisfy the less stringent asylum standard results in
failure to demonstrate eligibility for withholding of removal. See id. at *5; Efe
v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
      Nkurunziza’s application was re-opened in 2009 to consider claimed
changed country conditions; however, the only new evidence introduced was
two letters, allegedly from his brother, describing visits to his family home by
one of Nkurunziza’s former teachers. He testified this former teacher is now a
member of the ruling government party. As noted in the IJ’s 27 January 2010
opinion, this evidence does not affect the BIA’s 23 October 2007 decision.
Additionally, Nkurunziza submitted a letter from his sister claiming their
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                                   No. 12-60719
brother was murdered by government officials. That evidence, however, was
not submitted to the IJ at the 27 January 2010 hearing, and will not be
considered for his application for asylum or withholding of removal.
Nkurunziza cannot meet his burden to show substantial evidence of a well-
founded fear of future persecution based on changed country conditions.
Certainly, the scant evidence does not compel ruling against the IJ and BIA
decisions. See Zhang, 432 F.3d at 344–45.
                                         B.
      Under the CAT, an alien must prove that, if he is removed: (1) it is “more
likely than not that he . . . would be tortured”, (2) “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. §§ 1208.16(c)(2), 1208.18(a)(1); Trejo-Robles v.
Holder, 348 F. App’x 982, 984 (5th Cir. 2009). For purposes of the CAT,
“torture” is defined as
             any act by which severe pain or suffering, whether
             physical or mental, is intentionally inflicted on a
             person for such purposes as obtaining from him . . .
             information or a confession, punishing him . . . for an
             act he . . . committed or is suspected of having
             committed, or intimidating or coercing him . . . for any
             reason based on discrimination of any kind . . . .

8 C.F.R. § 1208.18(a)(1).
      The BIA’s 23 August 2012 decision regarding the CAT claim was based
on the IJ’s 31 January 2011 supplemental decision. Nkurunziza is correct in
his assertion that, as discussed supra, the IJ misconstrued his testimony at
the 27 January 2010 hearing (erroneously believing Nkurunziza asserted the
teacher was not involved in the school massacre, but was merely sympathetic
to the individuals who carried out the crimes). Nevertheless, both the IJ and
the BIA ruled: even if the visits by the teacher to Nkurunziza’s family home

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                                 No. 12-60719
in Burundi were connected with the 1993 massacre, Nkurunziza failed to meet
his burden of proving it is “more likely than not” the teacher and government
officials who accompanied him, seek to torture Nkurunziza. Consequently,
Nkurunziza is not entitled to relief under the CAT based on changed country
conditions.
                                       C.
                                       1.
      Nkurunziza claims the BIA erred through its 21 June 2011 decision by
dismissing his appeal and erred again through its 15 December 2011 denial of
his motion to reconsider when he introduced evidence of his brother’s murder.
Nkurunziza fails to show error on the part of the BIA. 8 C.F.R. § 1003.1(d)(3)
(prohibiting BIA from engaging in fact finding on appeal and requiring parties
to file motions for remand if fact finding needed); see also Enriquez-Gutierrez
v. Holder, 612 F.3d 400, 410 n.9 (5th Cir. 2010) (noting parties cannot introduce
new evidence on appeal not considered by the IJ). To the extent Nkurunziza
seeks to appeal the BIA’s 15 December 2011 denial of his motion to reconsider,
this court does not have jurisdiction because he failed timely to seek review of
that decision. See Guevara v. Gonzales, 450 F.3d 173, 176 (5th Cir. 2006)
(citation omitted) (explaining BIA’s dismissal of an appeal and denial of a
motion to reconsider are distinct final orders, requiring separate petitions for
review).
                                       2.
      Nkurunziza also claims the BIA improperly denied his motion to hold his
case in abeyance pending a ruling on his request for prosecutorial discretion
by the DHS. Nkurunziza does not challenge the reasons for the denial of his
motion, but instead only asserts he is entitled to relief. As a result, he has
abandoned the issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir.
2003).
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                                No. 12-60719
                                     III.
     For the foregoing reasons, the petition is dismissed in part for lack of
jurisdiction; relief on the remaining claims is DENIED.




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