     Case: 15-60095       Document: 00513456147         Page: 1     Date Filed: 04/07/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                     No. 15-60095                                   FILED
                                   Summary Calendar                              April 7, 2016
                                                                               Lyle W. Cayce
                                                                                    Clerk
PRINCE MAKABALA NDULU,

                                                  Petitioner

v.

LORETTA LYNCH, U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A205 683 046


Before BARKSDALE, CLEMENT, and ELROD, Circuit Judges.
PER CURIAM: *
       Prince Makabala Ndulu, a native and citizen of the Democratic Republic
of the Congo (DRC), petitions for review of the Board of Immigration Appeals’
(BIA) dismissal of his appeal from the Immigration Judge’s (IJ) denial of his
application for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT).




       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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.
    Case: 15-60095    Document: 00513456147      Page: 2   Date Filed: 04/07/2016


                                  No. 15-60095

      Ndulu contends: the BIA erred in determining he was ineligible for
asylum; and, substantial evidence does not support the conclusion he failed to
demonstrate past persecution, or a well-founded fear of future persecution,
based on his political beliefs.    He asserts the BIA did not consider the
cumulative effect of his claims regarding past persecution, and applied the
incorrect legal standard in assessing his future-persecution claim. Ndulu also
maintains the BIA erred in determining he was ineligible for withholding of
removal or relief under the CAT.
      Our court reviews only the BIA’s decision, “unless the IJ’s decision has
some impact on the BIA’s decision”.        Wang v. Holder, 569 F.3d 531, 536
(5th Cir. 2009). Here, the BIA based its decision in part on the IJ’s reasoning;
therefore, our court may review the decisions of both the BIA and IJ. Id.; Efe
v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). Questions of law are reviewed
de novo; factual findings for substantial evidence. Id. at 903. To demonstrate
a lack of substantial evidence, Ndulu must show “not only that the evidence
supports a contrary conclusion, but also that the evidence compels it”. Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006) (emphasis in original) (quoting
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994)).
      Asylum is discretionary, and may be granted to a refugee, outside his
country, “who is unable or unwilling to return . . . because of persecution or a
well-founded fear of persecution on account of [1] race, [2] religion, [3]
nationality, [4] membership in a particular social group, or [5] political
opinion”. Milat v. Holder, 755 F.3d 354, 360 (5th Cir. 2014) cert. denied, 135
S. Ct. 1183 (2015) (citation omitted). Accordingly, Ndulu must show “either
past persecution or a reasonable, well-founded fear of future persecution on
account of one of the five enumerated factors”. Id.




                                       2
    Case: 15-60095    Document: 00513456147    Page: 3   Date Filed: 04/07/2016


                                No. 15-60095

      Ndulu maintains he was subject to past persecution due to his political
opinion. After returning to the DRC in July 2011 from South Korea (where he
was denied political asylum), he was interrogated at the airport upon arrival,
and later threatened by text message. In February 2012, he was detained in
the airport for eight hours on one occasion, stripped, beaten, and told he was
being “blacklisted” as a combatant after agents found photographs of
government violence in his luggage. Nevertheless, airport officials released
Ndulu in the evening; he walked home without seeking medical attention, and
remained in the DRC for several weeks without incident, before returning to
South Korea. Ndulu traveled back to the DRC for three weeks in July 2012,
and reported no incidents during that time.
      Our court has rejected claims of past persecution similar to Ndulu’s.
Eduard v. Ashcroft clarified that conduct may be “morally reprehensible” but
still not persecution. 379 F.3d 182, 188 (5th Cir. 2004) (general mistreatment
with one incident of physical violence insufficient to show past persecution).
Accordingly, under our highly deferential standard of review, Ndulu fails to
show the BIA erred in determining he did not suffer past persecution. Id.;
Aligwekwe v. Holder, 345 F. App’x 915, 920 (5th Cir. 2009).
      Moreover, the BIA properly considered the cumulative effect of the
persecutory conduct alleged rather than any individual incident of persecution.
See Eduard, 379 F.3d at 188. In agreeing with the IJ’s conclusion, although
the BIA stated Ndulu’s “one encounter with [G]overnment officials at the
airport” was insufficient to show past persecution, its restatement and
examination of several of Ndulu’s other claims reveals it properly considered
the aggregate effect of the incidents before making its determination.
      With regard to Ndulu’s claimed fear of future persecution, the BIA
applied the correct legal standard, and required him to show not only a



                                      3
    Case: 15-60095     Document: 00513456147     Page: 4   Date Filed: 04/07/2016


                                  No. 15-60095

subjective fear of persecution, but also that his fear was “objectively
reasonable”. Id. at 189. Substantial evidence supports the BIA’s conclusion
Ndulu failed to show a reasonable person in his circumstances would fear
persecution. Id.     As noted supra, although Ndulu received text-message
threats and was “blacklisted” as a combatant, he was able to remain in the
DRC after the airport incident; officials did not obstruct his departures to
South Korea; and he voluntarily returned to the DRC without incident.
Accordingly, Ndulu fails to show the evidence compels finding he has a well-
founded fear of future persecution. Id.
      Because Ndulu fails to show a well-founded fear of persecution for
purposes of asylum, he also fails to satisfy the higher objective burden required
to show eligibility for withholding of removal. Chen, 470 F.3d at 1138 (“[T]he
requirement [to establish] ‘clear probability’ of persecution requires the
applicant to show a higher objective likelihood of persecution than that
required for asylum”).
      For Ndulu’s assertion the BIA erred in determining he was ineligible for
CAT relief, he must demonstrate “it is more likely than not” he would be
subject to torture if he returns to the DRC. Ramirez-Mejia v. Lynch, 794 F.3d
485, 493 (5th Cir. 2015). He again asserts he has been “blacklisted”, and others
participating in similar political activities have been subject to violence. Ndulu
does not contest the finding he was not tortured in the past. The BIA agreed
with the IJ’s determination that, due to insufficient evidence, he could not
make the requisite showing. Here, the limited evidence presented does not
compel a contrary conclusion. See id. at 493–94.
      DENIED.




                                        4
