Francois Lukunku-Tshibangu v. Loretta Lynch

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: A200-871-962. Copies to all parties and the agency. [999854360]. [15-1607]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1607

FRANCOIS PIERRE LUKUNKU-TSHIBANGU,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued:

March 22, 2016

Decided:

June 15, 2016

Before KING, AGEE, and FLOYD, Circuit Judges.

Petition denied by unpublished per curiam opinion.

ARGUED: Mariam Masumi, JOHNSON AND ASSOCIATES, P.C., Arlington,
Virginia,
for
Petitioner.
Andrea
Gevas,
UNITED
STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
ON
BRIEF: Randall L. Johnson, JOHNSON AND ASSOCIATES, P.C.,
Arlington, Virginia, for Petitioner.
Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division,
John S. Hogan, Assistant Director, Mona Maria Yousif, Office of
Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Francois

Lukunku-Tshibangu,

a

citizen

of

the

Democratic

Republic of Congo (DRC), petitions for review of an order of the
Board of Immigration Appeals (BIA) denying his application for
protection under the Convention Against Torture (CAT).

Lukunku-

Tshibangu claims that if he is returned to the DRC, he will
likely

be

tortured

substantial

by

evidence

the

Congolese

supports

the

armed

BIA’s

forces.
decision,

Because
we

deny

Lukunku-Tshibangu’s petition.

I.
Lukunku-Tshibangu entered the United States at Washington
Dulles International Airport on November 6, 2010.

On December

1, 2010, the Department of Homeland Security issued a Notice to
Appear charging Lukunku-Tshibangu with removability for entering
the

country

without

valid

§ 1182(a)(7)(A)(i)(I).

entry

documents.

See

8

U.S.C.

After an immigration judge (IJ) found

him removable, Lukunku-Tshibangu filed a petition for asylum,
withholding

of

removal,

and

CAT

protection.

At

his

merits

hearing on June 29, 2011, Lukunku-Tshibangu, appearing pro se,
testified to the following.
Before coming to the United States, Lukunku-Tshibangu was a
member of the Congolese armed forces, known as the FARDC.

He

joined the FARDC as a “volunteer” in 2000 after his parents died
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in the mid-1990s during the DRC’s civil war.

He was given the

title “major,” but had no supervisory authority, received no
specific

training,

and

was

J.A.

467.

identification.

See

Lukunku-Tshibangu

performed

not

traffic

issued

Over

the

control

any
next

at

border, inspecting crossing vehicles for weapons.
pistol,

occasionally

wore

a

uniform,

and

military
ten

the

years,

Congolese

He carried a

received

a

salary.

However, Lukunku-Tshibangu explained that he was “in and out” of
the army during this time.

J.A. 468; id. at 467 (“Army there is

not the way it is here, so sometimes I was with them, sometimes
not.”).

In

particular,

he

left

the

FARDC

in

2007

approximately three years to live abroad playing soccer.

for
When

he returned to the DRC in 2009, Lukunku-Tshibangu resumed his
traffic control duties.
In 2010, Lukunku-Tshibangu was selected to travel to the
United States with a delegation of nine other DRC army officials
to attend an anti-terrorism training conference.
United

States

governments

arranged

for

his

The DRC and

ticket

and

visa.

Lukunku-Tshibangu did not know why he was chosen to be part of
the delegation, but suggested that it might have been because he
worked at the Congolese border and got along well with others.
When he arrived in the United States, Lukunku-Tshibangu informed
immigration officials that he did not wish to return to the DRC.
He was then detained pending proceedings before the IJ.
3

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detention,

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Lukunku-Tshibangu

met

with

Alain

Kelenga,

a

representative from the DRC embassy, and informed Kelenga that
he intended to seek asylum in the United States.
Lukunku-Tshibangu testified that he feared returning to the
DRC for two reasons.
would

punish

him

First, he feared that his FARDC superiors

for

failing

to

attend

the

anti-terrorism

training, which they would consider disobedience and possibly
opposition to the government.

Second, he feared that fellow

FARDC

out

soldiers

would

harm

him

of

jealousy

that

he

was

selected to attend the training and anger that he did not do so.
When asked whether the FARDC would perceive his failure to
attend the training as dissidence, Lukunku-Tshibangu repeatedly
stated that he did not know.

See, e.g., J.A. 486 (“I have no

idea because I cannot think [in] their place.”).

Similarly,

when asked what he believed would happen to him if he returned
to the DRC, Lukunku-Tshibangu stated that he “ha[d] no idea what
would happen” but that he would “just enter the same suffering.”
J.A.

471.

He

explained

that

by

“suffering,”

he

meant

“the

suffering that [he] underwent during the war” as well as “when
you are working . . . hard, [and] you’re not paid well.
a suffering too.” 1

J.A. 473, 484.

1

That’s

Lukunku-Tshibangu confirmed

The DRC’s civil war ended in 2003, approximately seven
years before Lukunku-Tshibangu arrived in the United States.
See J.A. 575-76.

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that he had never been arrested or imprisoned by the Congolese
government or subjected to any harm other than the “suffering”
he described.
officers

who

He further confirmed that he knew of no other
had

been

punished

after

failing

to

complete

a

mission because they were perceived as opposing the government.
The IJ denied Lukunku-Tshibangu’s applications for asylum
and withholding of removal but granted him protection under the
CAT, finding that his credible testimony, along with the State
Department’s 2011 Human Rights Report on the DRC (the “Human
Rights Report”), established that Lukunku-Tshibangu would likely
be tortured if returned to the DRC.

See J.A. 368.

The BIA

upheld the IJ’s denial of asylum and withholding of removal but,
upon de novo review, reversed the IJ’s grant of CAT protection.
Lukunku-Tshibangu petitioned this Court for review of the
BIA’s decision.
the

case

for

Pursuant to the parties’ motions, we remanded
reconsideration

in

light

of

our

intervening

decision in Turkson v. Holder, 667 F.3d 523 (4th Cir. 2012),
which held that an IJ’s determination regarding a petitioner’s
likely future mistreatment is a factual determination that the
BIA

must

review

for

clear

error

rather

than

de

novo.

See

Lukunku-Tshibangu v. Holder, No. 12-1002 (4th Cir. May 1, 2012).
The

BIA

then

remanded

the

case

to

the

IJ

to

make

specific

findings as to the treatment Lukunku-Tshibangu would likely face

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if removed to the DRC and to further consider his eligibility
for asylum and withholding of removal.
On remand, the IJ again determined that Lukunku-Tshibangu
was ineligible for asylum or withholding of removal but that he
qualified for protection under the CAT.
Lukunku-Tshibangu

were

returned

to

the

The IJ found that if
DRC,

the

FARDC

would

likely be able to locate him because of his “substantial past
connection with the FARDC, his failure to follow their orders,
and the army’s extensive presence in the [DRC].”
IJ

further

found

Tshibangu’s

that

absence

the

from

FARDC

the

likely

J.A. 83.

knew

training,

of

viewed

The

Lukunku-

him

as

a

dissident, and intended to apprehend him upon his return to the
DRC.

The IJ noted that, according to the Human Rights Report,

the FARDC engages in arbitrary violence and killing of civilians
and

specifically

concluded,

the

targets
FARDC

perceived

would

likely

opponents.

Thus,

torture

kill

or

the

IJ

Lukunku-

Tshibangu or imprison him, which would itself constitute torture
because

of

the

deplorable

conditions

in

Congolese

prisons.

Finally, the IJ found that Lukunku-Tshibangu’s fellow soldiers
were likely “enraged” by his failure to take advantage of the
privilege
likely
“operate

of

attending

torture
with

him

the

for

impunity,

anti-terrorism

his

training

disloyalty,
torturing

6

and

as

and

FARDC
killing

would

soldiers
people

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those

who

are

suspected

of

dissent.”

J.A. 84.
On

appeal,

the

BIA

found

that

the

IJ

clearly

erred

in

determining that Lukunku-Tshibangu would likely be tortured if
returned to the DRC, and denied Lukunku-Tshibangu’s application
for CAT protection.

Lukunku-Tshibangu seeks review of the BIA’s

decision. 2

II.
To qualify for protection under the CAT, an applicant bears
the burden of proving that “it is more likely than not that he
or she would be tortured if removed to the proposed country of
removal.”
form

of

8 C.F.R. § 1208.16(c)(2).
cruel

inhuman

on

official.

by

application

or

with

that

for

CAT

the

is

consent

“intentionally

Id. § 1208.18(a)(1)-(2).
an

person”

treatment”

inflicted

When

a

and

Torture is “an extreme

protection

of

a

rests

public

on

a

“hypothetical chain of events,” the applicant must show that
each link in the chain is more likely than not to occur, as
“[i]t is the likelihood of all necessary events coming together
that must more likely than not lead to torture, and a chain of

2

Lukunku-Tshibangu does not appeal the denial
applications for asylum and withholding of removal.

7

of

his

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events cannot be more likely than its least likely link.”
J.F.F.,

23

assessing

I.

&

N.

whether

Dec.

an

912,

918

applicant

&

has

n.4
met

(A.G.
this

In re

2006).
burden,

In
“all

evidence relevant to the possibility of future torture shall be
considered,”

including

evidence

of

past

torture,

evidence

of

“gross, flagrant or mass violations of human rights” and other
country conditions, and whether the applicant could relocate to
a part of the country where he or she is not likely to be
tortured.
We

8 C.F.R. § 1208.16(c)(3).
review

substantial

the

BIA’s

evidence.

decision

to

Suarez-Valenzuela

deny
v.

CAT

relief

Holder,

714

for
F.3d

241, 245 (4th Cir. 2013).

“Under this standard, ‘administrative

findings

conclusive

of

fact

are

unless

any

reasonable

adjudicator would be compelled to conclude to the contrary.’”
Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

“We will reverse the

BIA’s decision only if ‘the evidence . . . presented was so
compelling that no reasonable factfinder could fail to find’”
the elements required for CAT protection.

Id. (quoting INS v.

Elias–Zacarias, 502 U.S. 478, 483–84 (1992)).

III.
A.
Lukunku-Tshibangu contends that if he is removed to the
DRC, his FARDC superiors will torture him as punishment for his
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attend

the

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anti-terrorism

training.

This

hypothetical chain of events requires, among other things, that
his FARDC superiors will (1) become aware of his return to the
DRC, (2) view his absence from the training as disobedience or
opposition, and (3) torture him.

A reasonable fact-finder could

find that Lukunku-Tshibangu has not shown that these events are
more likely than not to occur.
As the BIA observed, the evidence does not establish that
the FARDC would recognize and identify Lukunku-Tshibangu upon
his

return

to

the

DRC.

Lukunku-Tshibangu

did

not

have

leadership or even supervisory position within the FARDC.

a
He

also had no military identification, only occasionally wore a
uniform, and left the FARDC for nearly three years while playing
soccer

abroad.

Furthermore,

there

is

no

evidence

that

the

people with whom Lukunku-Tshibangu previously worked, and who
might be able to recognize him, continue to work for the FARDC,
or that their presence in the DRC is so ubiquitous that they
would likely intercept Lukunku-Tshibangu regardless of where he
entered the country.

Finally, Lukunku-Tshibangu has been in the

United States for over five years and there is no evidence that
FARDC members have attempted to contact him, undermining the
IJ’s finding that the FARDC is anticipating Lukunku-Tshibangu’s
return and intending to apprehend him.

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The evidence also does not establish that the FARDC would
view

Lukunku-Tshibangu’s

absence

from

training as disobedience or dissidence.

the

anti-terrorism

When asked why he could

not simply inform his government that he was detained by United
States

immigration

attending

the

officials

training,

and

therefore

Lukunku-Tshibangu

prevented

did

not

offer

from
an

explanation but instead stated that “even if I told them I will
just enter the same suffering,” referring to his previous wartime hardships and low working wages. 3

J.A. 471.

Furthermore,

Lukunku-Tshibangu’s testimony indicates that attendance in the
FARDC is less formal than army participation in other countries.
He explained that he was “in and out [of] the army,” J.A. 468,
that the “[a]rmy there is not the way it is here, so sometimes I
was

with

previously

them,
left

repercussion.

sometimes
the

FARDC

not,”
for

J.A.

467,

nearly

and

three

that
years

he

had

without

Contrary to the IJ’s findings, the evidence does

not show that the FARDC would view Lukunku-Tshibangu’s absence
from the training as “blatant[] disobe[dience].”

J.A. 84.

There is even less support for the proposition that the
FARDC would view Lukunku-Tshibangu as a dissident.

The IJ asked

numerous times whether his absence from the training would be
3

Notably, Lukunku-Tshibangu did not suggest that Alain
Kelenga would have conveyed to the FARDC that Lukunku-Tshibangu
was seeking asylum in the United States.

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perceived as opposition to the government, to which LukunkuTshibangu replied “I don’t know;” “[t]hey can think any way they
want to;” and “I have no idea because I cannot think [in] their
place.”

J.A. 485-86.

officers

had

been

Similarly, when asked whether any other

punished

as

dissidents

after

failing

to

complete a mission abroad, Lukunku-Tshibangu replied, “I don’t
know.

I really don’t know about others.”

J.A. 486.

Finally, the evidence does not demonstrate that LukunkuTshibangu faces harm that amounts to torture upon his return to
the DRC.

When asked what he believed would happen to him if he

returned, Lukunku-Tshibangu replied, “I have no idea what would
happen, but anyway [I] wanted to . . . leave the country after
my parents died.

All I did there was [] survive.”

At

he

no

point

treatment;”

did

instead,

articulate
he

fear

repeatedly

of

stated

“cruel
that

J.A. 471.
and

he

inhuman

wanted

escape the “suffering” in the DRC such as poor wages.

to

The IJ’s

primary basis for finding a likelihood of torture was the Human
Rights

Report,

arbitrarily

which

killing

described

and

state

detaining

civilians

targeting those suspected of disloyalty.
violence

toward

citizens

does

not

eligibility for CAT protection.
629

F.3d

protection

440,

449

where

(4th

Cir.

applicant

and

forces

as

specifically

However, generalized

establish

an

individual’s

See, e.g., Lizama v. Holder,

2011)

“failed
11

security

(upholding
to

denial

establish

he

of

would

CAT
be

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targeted

by

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gangs

more

than

Pg: 12 of 14

any

other

citizens”);

Singh

v.

Holder, 699 F.3d 321, 334-35 & n.16 (4th Cir. 2012) (upholding
denial

of

CAT

protection

where

country

reports

identified

widespread abuse but did not show that petitioner himself would
more likely than not be tortured).
evidence

does

not

establish

And, as discussed above, the

that

Lukunku-Tshibangu

would

be

viewed as a dissident. 4
On

appeal,

Lukunku-Tshibangu

does

not

point

to

record

evidence that compels finding that he qualifies for CAT relief.
Instead, he asks the Court to re-weigh the evidence and draw
inferences in his favor.
reasonable

to

find

that

He argues, for example, that “it [is]
his

former

supervisors

and

fellow

soldiers would recall who he is” because he resumed his military
duties after playing soccer and because “[n]ot having an I.D. or
wearing

a

uniform

does

not

take

away

from

Tshibangu’s actual activities with the army.”
15.

Mr.

Lukunku-

Pet’r’s Br. 14-

Similarly, he asks the Court to infer that the FARDC likely

views him as a dissident because “[i]f [he] is viewed as one who
disobeyed, it leads one to conclude that he went against the
orders

.

.

.

because

he

disagreed

with

them.”

Id.

at

17.

However, “our task is not to reweigh the evidence and determine
4

Because Lukunku-Tshibangu has not shown that he would be
found and punished upon his return to the DRC, we need not
address whether detention in a DRC prison constitutes torture.

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which of the competing views is more compelling.
to

ensure

that

judgment.”
1999).

substantial

evidence

It is instead

supports

the

BIA’s

Gonahasa v. I.N.S., 181 F.3d 538, 542 (4th Cir.
For

the

reasons

discussed

above,

we

find

that

substantial evidence supports the BIA’s judgment here.

B.
Lukunku-Tshibangu also contends that fellow FARDC soldiers
will torture him out of jealousy that he was chosen to attend
the training in the United States and anger that he failed to do
so.

The evidence does not compel such a finding.

Lukunku-

Tshibangu’s evidence on this point amounts to his assertion that
he would be harmed because “it could be always jealously because
when you get here, you know, it becomes also [about] jealousy.”
J.A.

474.

However,

Lukunku-Tshibangu

does

not

specifically

identify any soldiers who would want to harm him or suggest that
he or other delegates were threatened by jealous soldiers when
they were first selected to come to the United States.

Instead,

Lukunku-Tshibangu simply speculates that unidentified soldiers
with

whom

he

worked

five

years

ago

continue

to

harbor

significant ill-will toward him and will be able to find and
torture him upon his return.

The evidence does not support such

suppositions.

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IV.
The

record

does

not

compel

us

to

find

that

Lukunku-

Tshibangu will more likely than not be tortured if removed to
the DRC.

Accordingly, we conclude that substantial evidence

supports the BIA’s denial of CAT protection and deny LukunkuTshibangu’s petition for review.
PETITION DENIED

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