                                                                                    United States Court of Appeals

                                                                                              Fifth Circuit

                                                   In the
                                                                                           F I L E D
                          United States Court of Appeals                                   January 25, 2006
                                        for the Fifth Circuit
                                             _______________                           Charles R. Fulbruge III
                                                                                               Clerk
                                               m 05-60044
                                             Summary Calendar
                                              _____________




                                             TSEGE SEYOUM,

                                                                            Petitioner,

                                                  VERSUS

                                        ALBERTO R. GONZALES,
                                  UNITED STATES ATTORNEY GENERAL,

                                                                           Respondent.

                                   _________________________

                                    Petition for Review of an Order of
                                    the Board of Immigration Appeals
                                             m A97 195 996
                                      _________________________




Before SMITH, GARZA, and PRADO,                            Tsege Seyoum seeks review of the denial
  Circuit Judges.                                       by the Board of Immigration Appeals (“BIA”)
                                                        of her application for asylum, withholding of
PER CURIAM:*                                            removal, and protection under the Convention
                                                        Against Torture (“CAT”). We deny the peti-
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
                                                            *
lished and is not precedent except under the limited        (...continued)
                                      (continued...)    circumstances set forth in 5TH CIR. R. 47.5.4.
tion for review.                                       turb the IJ’s findings of fact “unless we find
                                                       not only that the evidence supports a contrary
    Seyoum is a citizen of Ethiopia who has            conclusion, but that the evidence compels it.”
lived in the United States since April 2003.           Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
She alleges persecution at the hands of the            The alien bears the burden of proving that “the
Ethiopian government for being of Oromo eth-           evidence was so compelling that no reasonable
nicity and a suspected member of the Oromo             factfinder could conclude against it.” Id.
Liberation Front (“OLF”). She claims she was
arrested, taken to a prison named Dedessa,                A grant of asylum is discretionary, and to
and raped and beaten repeatedly over the               be eligible an alien must be “unable or unwill-
course of an eight-month stay. At her removal          ing to return to . . . [his home] country be-
hearings, Seyoum testified that she escaped            cause of persecution or a well-founded fear of
from Dedessa on December 31, 2002, when                persecution on account of race, religion, na-
the OLF raided the prison and freed its pris-          tionality, membership in a particular social
oners. She further denied membership in, or            group, or political opinion.” 8 U.S.C. § 1101-
any knowledge of, the OLF and its activities.          (a)(42)(A). To demonstrate a well-founded
                                                       fear of persecution, an alien must show “a sub-
   The immigration judge (“IJ”) denied Sey-            jective fear of persecution, and that fear must
oum’s claims based primarily on an adverse             be objectively reasonable.” Lopez-Gomez v.
credibility determination. In particular, the IJ       Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001).
cited a government report and affidavits sub-
mitted by Seyoum indicating that the Dedessa               A claim for withholding of removal, mean-
prison closed in November 2002, the month              while, does not require proof of subjective
before the date of Seyoum’s alleged escape.            fear, Zhang, 432 F.3d at 344, but it does re-
Furthermore, the IJ found that Seyoum’s writ-          quire an applicant to prove a “clear probabili-
ten statement in her asylum application contra-        ty” of future persecution if returned to his
dicted her testimony that she had no knowl-            home country, IRS v. Stevic, 467 U.S. 407,
edge of the OLF, and that Seyoum had failed            413 (1984). Seyoum must show it is more
to provide any meaningful corroborating evi-           likely than not that “[her] life or freedom
dence to support her allegations.                      would be threatened . . . because of [her] race,
                                                       religion, nationality, membership in a particular
   The BIA affirmed the IJ’s order without             social group, or political opinion.” 8 U.S.C.
opinion. Therefore, the decision of the IJ be-         § 1231(b)(3)(A).
comes the basis for this court’s review. Soad-
jede v. Ashcroft, 324 F.3d 830, 831-32 (5th               Finally, to secure relief under CAT, an alien
Cir. 2003).                                            does not need to show persecution based on
                                                       one of the five protected characteristics for
   We review for substantial evidence the fac-         claims of asylum and withholding of removal,
tual basis for the IJ’s decision that Seyoum is        Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
ineligible for asylum, withholding of removal,         2002), but he must meet the “higher bar” of
and relief under CAT. Zhang v. Gonzales,               proving it is more likely than not that he will
432 F.3d 339, 343-44 (5th Cir. 2005). On               be tortured if returned to his home country,
substantial evidence review, we will not dis-


                                                   2
id.1 To meet this burden, he may produce                   [IJ’s] assessment of the alien petitioner’s
evidence of past torture, an inability to relo-            credibility.” Mantell v. INS, 798 F.2d 124,
cate to a safer part of the country, human                 127 (5th Cir. 1986).2
rights abuses committed within the country, or
any other relevant information. See 8 C.F.R.                  The IJ’s conclusion that Seyoum did not
§ 208.16(c)(3).                                            meet her burden of persuasion on the likeli-
                                                           hood of future persecution or torture if re-
    The primary evidence Seyoum presented                  turned to Ethiopia is supported by substantial
that she would suffer persecution or torture if            evidence. Seyoum’s testimony that she es-
returned to Ethiopia consists of her testimony             caped from Dedessa prison on December 31,
that she experienced persecution in the past               2002, contradicts not only a State Department
because of her status as an ethnic minority and            report but affidavits by two Ethiopian natives
her suspected affiliation with OLF. Therefore,             submitted by Seyoum to corroborate her testi-
all three of her claims depend heavily on a fa-            mony on conditions at the prison. Her written
vorable credibility determination.                         statement indicates knowledge of the aims of
                                                           OLF, but her oral testimony suggests igno-
    For asylum, withholding of removal, and                rance of the organization. The two affidavits
CAT claims, “[t]he testimony of the applicant,             she submitted are identical, word for word,
if credible, may be sufficient to sustain the              and provide mainly hearsay evidence. Al-
burden of proof without corroboration.”
8 C.F.R. §§ 208.13(a) (asylum); 208.16(b)
(withholding of removal); 208.16(c)(2) (CAT).                 2
                                                                 Seyoum argues that even if an adverse credi-
We cannot second-guess the BIA or IJ by sub-
                                                           bility determination defeats her asylum and with-
stituting our own credibility judgment for that            holding-of-removal claims, it cannot foil her CAT
of the factfinder. Chun, 40 F.3d at 78. “We                claim, because CAT instructs the IJ to consider the
will not review decisions turning purely on the            conditions of the country of removal as well as the
                                                           applicant’s testimony. See Kamalthas v. INS, 251
                                                           F.3d 1279, 1284 (9th Cir. 2001) (remanding CAT
   1
       The applicable regulation defines torture as        claim where IJ “plainly overrelied” on adverse
                                                           credibility determination without considering
   any act by which severe pain or suffering,              country conditions); Mansour v. INS, 230 F.3d
   whether physical or mental, is intentionally in-        902, 908 (7th Cir. 2000) (remanding CAT claim
   flicted on a person for such purposes as ob-            where adverse credibility determination “overshad-
   taining from him or her or a third person infor-        ow[ed]” petitioner’s torture claim). The IJ, how-
   mation or a confession, punishing him or her            ever, did specifically consider the pattern or
   for an act he or she or a third person has com-         practice of persecution in Ethiopia but concluded
   mitted or is suspected of having committed, or          that Seyoum did not establish that she was simi-
   intimidating or coercing him or her or a third          larly situated to any persecuted group. Further-
   person, or for any reason based on discrimina-          more, Seyoum’s testimony relates directly to the
   tion of any kind, when such pain or suffering is        question whether it is likely she will be tortured if
   inflicted by or at the instigation of or with the       returned to Ethiopia. See Efe, 293 F.3d at 907-08
   consent or acquiescence of a public official or         (distinguishing Kamalthas and Mansour in part
   other person acting in an official capacity.            because “the credibility assessment here goes di-
                                                           rectly to the issue of whether or not [the alien] will
8 C.F.R. § 208.18(a)(1) (2000).                            be tortured”).

                                                       3
though a reasonable factfinder might conclude
that this evidence does not impugn the credi-
bility of Seyoum’s entire testimony, we are
certainly not compelled to reach that result.

   The petition for review is DENIED.3




   3
     The motion of attorney Teodora Purcell to
withdraw as counsel is GRANTED.

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