     Case: 16-60566      Document: 00514152091         Page: 1    Date Filed: 09/12/2017




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

                                    No. 16-60566
                                                                                     Fifth Circuit

                                                                                   FILED
                                  Summary Calendar                        September 12, 2017
                                                                              Lyle W. Cayce
MOSES MULENGA MUKUKA,                                                              Clerk


                                                 Petitioner

v.

JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A206 238 530


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM: *
       Moses Mulenga Mukuka, a native and citizen of Zambia, petitions for
review of a decision by the Board of Immigration Appeals (BIA) dismissing his
appeal of the immigration judge’s (IJ) denial of his application for withholding
of removal under the Convention Against Torture (CAT). He also moves for
the appointment of counsel and the voluntary dismissal of his petition for
review.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-60566

      Although we have the discretion to dismiss an appeal without prejudice
in limited cases where a party has filed a motion to stay further proceedings,
no motion for a stay pursuant to 5th Circuit Rule 27.1.3, has been submitted,
and this procedure is not appropriate in this case.       See 5TH CIR. R. 42.4.
Accordingly, Mukuka’s motion for dismissal of his petition for review is
DENIED.
      Generally, we have authority to review only the decision of the BIA but
will consider the IJ’s decision if it influenced the determination of the BIA.
Zhu v. Gonzales, 493 F.3d 588, 593 (5th Cir. 2007). Because the BIA agreed
with the IJ’s findings and conclusions, the IJ’s findings are reviewable. See Efe
v. Ashcroft, 293 F.3d 899, 903 (5th Cir. 2002). We review the determination of
an alien’s eligibility for protection under the CAT for substantial evidence.
Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005).
      Mukuka argues that the BIA erred in agreeing with the IJ’s
determination that documentary evidence in the form of country reports was
not sufficient to establish that (1) he would more likely than not be tortured
upon his return to Zambia because he was a homosexual and (2) the Zambian
government would acquiesce in any torture. See Tamara-Gomez v. Gonzales,
447 F.3d 343, 350-51 (5th Cir. 2006).      The BIA agreed that Zambia was
criminalizing homosexuality and that homosexuals might have to endure a
hostile environment; however, the BIA concluded that the country reports did
not support a finding that Mukuka would likely be tortured, particularly given
that relatively few people had been arrested for homosexuality and most had
either been acquitted or had not even been charged.
      Mukuka concedes that he did not present any evidence of past torture
and does not challenge the determination that his accounts of alleged torture
of other homosexuals was based on hearsay and media reports. Moreover,



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                                No. 16-60566

Mukuka notes that the country reports he submitted did not contain first-
hand, explicit evidence of torture but simply implied that homosexuals would
be arrested and tortured.     In addition, Mukuka does not challenge the
conclusion that he most feared economic persecution, namely that he would be
unable to find employment, upon return to Zambia.
      An alien seeking relief under the CAT must satisfy a rigorous standard
because he must provide proof of torture and not merely persecution. Chen v.
Gonzales, 470 F.3d 1131, 1139 (5th Cir. 2006). Mukuka does not meet this
standard and has not demonstrated that the evidence compels reversal of the
BIA’s conclusion that he was not entitled to protection under the CAT. See id.
at 1134. Accordingly, Mukuka’s petition for review is DENIED. His motion
for the appointment of counsel is, likewise, DENIED.




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