                    United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-2716
                                   ___________

William Johnathan Kimumwe,          *
                                    *
             Petitioner,            *
                                    * Petition of Review from the Board
       v.                           * of Immigration Appeals.
                                    *
                   1
Alberto Gonzales, Attorney General  *
of the United States,               *
                                    *
             Respondent.            *
                               ___________

                             Submitted: September 16, 2005
                                Filed: December 13, 2005
                                 ___________

Before BYE, HEANEY, and COLLOTON, Circuit Judges.
                           ___________

COLLOTON, Circuit Judge.

       William Kimumwe petitions for review of a decision of an Immigration Judge
denying his application for asylum, withholding of removal, and protection under the
Convention Against Torture. We conclude that the IJ’s determination was within the
range of decisions available to a reasonable adjudicator, and we therefore deny the
petition for review.

      1
       Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
                                         I.

      Kimumwe is a native of Zimbabwe who fled his country in March 2002. He
alleges that he is a homosexual, and that he left Zimbabwe on account of the
government’s intolerance of homosexuality. Kimumwe contends that he suffered past
persecution by the Zimbabwean government, and that he has a well-founded fear that
he would be persecuted if he were returned.

       In support of his claim regarding past persecution, Kimumwe described several
incidents from his youth in Zimbabwe. He explained that while attending secondary
school in 1995 at age 12, he had sexual relations with another boy his age. Kimumwe
admitted that he “lured” the other student into participating in sexual activity, and
acknowledged that the other student may not have been gay. The school’s policy
prohibited sexual activity of any kind, and Kimumwe was expelled from school as a
result of the incident.

      In 1998, while attending the College of Bulawayo, Kimumwe invited a fellow
student to his room for drinks, during which time the two men became drunk and
engaged in sexual activity. The second student reported the incident to college
authorities, who in turn reported it to police, and Kimumwe was arrested. Police
detained Kimumwe for two months, but did not charge him with a criminal offense.
Kimumwe testified that he was accused of getting the other boy drunk, and then
having sex with him, although Kimumwe also stated that a jailer later told him that
he was detained because he was gay. No physical abuse occurred in the jail.

       Kimumwe was released from jail when the head of the orphanage where he was
raised bribed prison officials. Police gave Kimumwe an unofficial document which
stated that charges against him had been dismissed, and he testified to no further
problems with authorities after his release. President Robert Mugabe of Zimbabwe
declared homosexuality illegal in 1998, and in December 1998, after Mugabe made

                                        -2-
further anti-homosexual pronouncements, Kimumwe left Zimbabwe for Kenya.
Kimumwe later left Kenya for the United States with the assistance of the Gay &
Lesbians of Zimbabwe organization.

       Kimumwe entered the United States in 2002, and eventually applied for
asylum, withholding of removal, and protection under the CAT. In rejecting his
claims, the IJ reasoned that homosexual orientation may qualify as a “particular social
group” for purposes of determining whether an alien is a “refugee,” see 8 U.S.C.
1101(a)(42); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (B.I.A. 1990), but
concluded that Kimumwe’s problems with authorities in Zimbabwe “were not based
simply on his sexual orientation, but instead resulted [from] his engaging in
prohibited sexual conduct.” The IJ recognized that the President of Zimbabwe is not
tolerant of homosexuals and has expressed disdain for them, but the IJ found these
official pronouncements – without any accompanying evidence of persecution based
solely on homosexual status – insufficient to establish a well-founded fear of future
persecution. The IJ also stated that Kimumwe had presented no objective evidence
to confirm his homosexuality. Having found insufficient evidence on the asylum
claim, the IJ concluded that Kimumwe also failed to meet the more stringent
requirements for withholding of removal and protection under the CAT. The BIA
affirmed without opinion.

                                          II.

       Kimumwe’s first claim is that the IJ erred in denying his application for
asylum. The Attorney General has discretion to grant asylum to an alien who is
unwilling to return to his home country “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see 8 U.S.C.
§ 1158(b). Generally speaking, “[p]ersecution is the infliction or threat of death,
torture, or injury to one’s person or freedom, on account of a protected

                                         -3-
characteristic.” Salkeld v. Gonzales, 420 F.3d 804, 808-09 (8th Cir. 2005) (internal
quotations omitted). We review the BIA’s determinations under the “substantial
evidence” standard, which, in this context, means that we uphold the agency’s
decision unless any reasonable fact-finder would be compelled to conclude that
Kimumwe demonstrated the requisite fear of persecution. See 8 U.S.C.
§ 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); Menendez-
Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir. 2004). Because the BIA affirmed the
IJ’s decision without opinion, we treat the IJ’s conclusions as those of the agency.
8 C.F.R. § 1003.1(e)(4); see Dominguez v. Ashcroft, 336 F.3d 678, 679 n.1 (8th Cir.
2003).

       Kimumwe argues that he satisfied his burden of showing a well-founded fear
of future persecution, based largely on past persecution in Zimbabwe. See 8 C.F.R.
§ 208.13(b)(1). He contends that he is a homosexual, and that his expulsion from
secondary school in 1995 and his arrest and detention in 1998 while attending the
College of Bulawayo are evidence of past persecution based on his membership in a
particular social group. The IJ concluded, however, that the actions of Zimbabwean
authorities in these instances were not based on Kimumwe’s sexual orientation, but
rather on Kimumwe’s involvement in prohibited sexual conduct.

       As to the secondary school, there was evidence in the record that Kimumwe,
at age 12, “lured” a student into sexual activity, and was expelled from the school on
that basis. Kimumwe testified that it was a violation of school policy for students to
have sex with each other, that he would have been expelled for having sex with either
a boy or a girl because “it was illegal to have sex,” and that he admitted at the time
to luring another boy, who was not gay, into having sexual intercourse. (R. 153-54).
Expulsion of a boy from school under these circumstances does not support, much
less compel, a finding of persecution on the basis of homosexual status.




                                         -4-
       Kimumwe testified that while attending college, he fell in love with a 16-year-
old boy who “had love for girls” and was not gay, but Kimumwe thought he “could
change him,” and could make him interested in homosexual sex. (R. 155). Kimumwe
admitted that “one time I got him drunk in my room and slept with him,” stating that
“he drank my drinks and he got drunk so . . . I was responsible for that.” (R. 155-56).
The next day, the other student said that Kimumwe “had done something wrong to
him” by engaging in sexual activity, and reported the incident to school officials. (R.
157). Kimumwe was arrested, and he testified inconsistently about the circumstances,
saying at one point that the police said “it’s illegal to be gay in public,” but on further
examination stating that they “they didn’t tell me why they were taking me.” (R. 158-
59). After a bribe resulted in Kimumwe’s release, police gave him a letter stating that
he had been charged with sodomy and sexual assault, but was released due to a lack
of evidence. (R. 160). Again, we believe a reasonable adjudicator could conclude
that the government’s action in this instance was based not on Kimumwe’s
homosexual status, but on allegations of sexual misconduct, even assuming that the
sanction was extreme enough to constitute “persecution” and that homosexual status
is a “particular social group” for purposes of the governing statute. See Molathwa v.
Ashcroft, 390 F.3d 551, 554 (8th Cir. 2004).

       Kimumwe also testified that on various occasions while in Zimbabwe, local
authorities harassed him by chasing him and making disparaging remarks, neighbors
spat on him, kicked him, and threw stones at him, and that on one occasion, he was
beaten by villagers and shocked with an electric wire while on his way to visit a
friend. Harassment by local authorities of the sort described, however, does not rise
to the level of persecution. See Salkeld, 420 F.3d at 808-09. Actions by private
parties are not attributable to the government, absent a showing that the harm is
inflicted by persons that the government is unwilling or unable to control, see
Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001), and we conclude that the IJ
reasonably declined to find on this record that the incidents involving neighbors and
villagers described by Kimumwe amounted to persecution by official authorities.

                                           -5-
       Kimumwe also asserts that he has a well-founded fear of future persecution
because of the announced hostility of the Zimbabwean government to homosexuality.
As the IJ observed, however, Kimumwe’s only encounter with police occurred when
he was accused of coercing another student to participate in sexual activity, and the
police eventually provided him with a document that assisted in avoiding future
harassment by local authorities. Although the government has stated its disapproval
of homosexuality and espoused harsh anti-homosexual rhetoric, “persecution is an
extreme concept,” typically requiring the infliction or threat of death, torture, or
injury to one’s person or freedom, Salkeld, 420 F.3d at 808-09, and the evidence here
did not compel a finding that a homosexual returned to Zimbabwe has a well-founded
fear that he would be subjected to such serious mistreatment. While the State
Department’s Country Report on Human Rights Practices for 2001 noted “numerous,
serious abuses” by the government, it did so in the context of a government-
sanctioned campaign that targeted political opposition, not persons of homosexual
status. (R. 215). Thus, assuming that Kimumwe is a member of a “particular social
group,” the IJ reasonably concluded that he did not have a well-founded fear of
persecution on that basis.

       Because Kimumwe failed to satisfy the burden of proof on his asylum claim,
his claims for withholding of removal and for protection under the CAT (which is
also based on his asserted homosexual status) fail as well. Regalado-Garcia v. INS,
305 F.3d 784, 788 (8th Cir. 2002); Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir.
2005). We decline to consider Kimumwe’s contentions that he was denied due
process in the hearing before the Immigration Judge, because he failed to present
those issues in an appeal to the BIA. 8 U.S.C. 1252(d)(1); Etchu-Njang v. Ashcroft,
403 F.3d 577, 583-84 (8th Cir. 2005).

      The petition for review is denied.




                                           -6-
HEANEY, Circuit Judge, dissenting.

      I cannot agree with the majority that William Kimumwe has not experienced
past persecution on account of his sexual orientation, nor can I accept that he has no
well-founded fear of being persecuted in the future on account of his sexual
orientation2 if returned to Zimbabwe. Thus, I respectfully dissent.

        The IJ’s conclusion that Kimumwe has not established eligibility for asylum
is simply not supported by the record. At the outset, I take issue with the IJ’s
statement that Kimumwe presented no objective evidence to confirm his
homosexuality. It is unclear what type of evidence would satisfy the IJ. Kimumwe
testified he was openly gay. He stated he realized he was gay when he was seven
years old. He presented a letter from a Kenyan orphanage administrator, Kemba
Andrew Waakl, indicating that Kimumwe was gay. After carefully perusing the
record, I have found no evidence whatsoever that would contradict Kimumwe’s
claimed sexual orientation and accept that he is openly gay.

       The IJ next discounted Kimumwe’s evidence of persecution, opining that
Kimumwe “was not punished because of his status as a homosexual, but rather
because of the apparently coercive circumstances in which he engaged in sexual
activity.” (R. at 78.) This is a mischaracterization of the record. When Kimumwe
was twelve, he engaged in his first homosexual experience at school with a classmate.


      2
        It is beyond question that a person’s sexual orientation may form the basis for
a legitimate asylum claim. Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 820-23
(BIA 1990), adopted as precedent in all future proceedings, Att’y Gen. Order No.
1895-94 (June 19, 1994); Hernandez-Montiel v. INS, 225 F.3d 1084, 1093-94 (9th
Cir. 2000) (granting withholding of removal to an alien who established a clear
probability of future persecution based on his feminine sexual identity); Molathwa
v. Ashcroft, 390 F.3d 551, 554 (8th Cir. 2004) (“We will assume, for purposes of
Molathwa’s appeal, homosexuals are a particular social group eligible for relief.”).

                                         -7-
School administrators found out and expelled Kimumwe. The IJ emphasized that
Kimumwe stated he “lured” the other boy into sexual conduct. Kimumwe explained
at the hearing that this meant he convinced the other boy to have sex, not that he
coerced the boy.

       When Kimumwe was sixteen, he started at the College of Bulawayo on a
scholarship to study computer engineering. He became attracted to another male
student named Ohomutso. On one occasion, Kimumwe and Ohomutso drank too
much and had sex. The next day, people found out, and Ohomutso became ashamed.
On the advice of classmates, Ohomutso reported this incident to school
administrators, who then called police. Kimumwe was arrested. He asked why he
was being arrested, and the police told Kimumwe it was because he was gay, and
because it was illegal to be gay in public. Kimumwe was held for two months
without any charges filed against him, and without any hearing on his fate. Then the
head of Kimumwe’s orphanage arrived at the jail and bribed the police officials to
release Kimumwe. She asked the officers to give Kimumwe some type of document
indicating that he had been released so that he would not be harassed by local
authorities. Kimumwe was provided with a handwritten note explaining that he had
been released because there was not enough evidence to charge him with sodomy or
sexual assault. With regard to this incident, the IJ apparently believed that Kimumwe
had taken advantage of Ohomutso by getting him drunk for the purpose of having
sex. At the hearing, however, Kimumwe clarified that they were both drunk, and that
he did not compel Ohomutso to have sex in any way. Importantly, the IJ also
overlooked Kimumwe’s unrefuted testimony that the officers who arrested him made
it clear he was arrested for being gay, not for having sex. Thus, the IJ’s finding that
Kimumwe had not established past persecution based on his status as an openly gay
man is not supported by substantial evidence.

      Similarly, Kimumwe presented sufficient evidence that he had a reasonable
apprehension that he would be subjected to future persecution if returned to

                                         -8-
Zimbabwe. Kimumwe, in referring to the government in his asylum application,
stated that “they search for people like me” and kill them. (R. at 323-24.) This is
consistent with the exhibits presented in his case. According to State Department
reports on country conditions, Zimbabwean President Robert Mugabe has been in
power since 1980, and rules a country whose security forces have committed
“numerous, serious human rights abuses.” (R. at 215.) In 1995, Mugabe publicly
referred to gays as “sodomites and perverts” and declared that homosexual people had
“no rights at all.” (Id. at 196.) Mugabe’s anti-gay rhetoric became stronger soon
thereafter, attacking Britain’s tolerance of homosexuals, whom Mugabe believed
were “worse than dogs and pigs.” (Id. at 326.) In speeches, Mugabe has promised
that Zimbabwe will do “everything in its power” to combat homosexuality, (id.), and
has described homosexual relations as “an abomination and decadence,” (id. at 270).
Mugabe remains in power today.

       Our court ought not sanction the return of an openly gay man to a country
whose leader has vowed to rid the country of homosexuals. Zimbabwe’s
government’s past conduct, both generally and with specific reference to Kimumwe,
indicates an intent to further persecute him on the basis of his sexual orientation.
Kimumwe has established that he has suffered past persecution and has a reasonable
fear of future persecution on account of being openly gay. Because I would reverse
the IJ’s contrary finding, I respectfully dissent.
                        ______________________________




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