Mwembie v. Gonzales

United States Court of Appeals Fifth Circuit

FILED REVISED APRIL 12, 2006 March 16, 2006

Charles R. Fulbruge III In the Clerk United States Court of Appeals for the Fifth Circuit _________ m 04-60832 Summary Calendar ______________

MONIQUE T. MWEMBIE,

Petitioner,

VERSUS

ALBERTO GONZALES, UNITED STATES ATTORNEY GENERAL,

Respondent.

_________________________

Petition for Review of an Order of the Board of Immigration Appeals _________________________

Before SMITH, GARZA,* and PRADO, Monique Mwembie petitions for review of Circuit Judges. the denial by the Board of Immigration Ap- peals (“BIA”) of her application for asylum, JERRY E. SMITH, Circuit Judge: withholding of removal, and protection under the Convention Against Torture (“CAT”). We deny the petition. * Judge Garza concurs except for part II.

I. After that, Mwembie went outside her Mwembie, a citizen of the Democratic Re- room and saw everyone running around. R. public of Congo (“DRC”), fled that country in 178. Other colleagues in the hallway also 2001 after the assassination of the former pres- asked what was going on. R. 461, 467. She ident, Laurent Kabila.1 Mwembie worked as a did not really know what to do, so she picked secretary in the communications department at up the phone, but there was no dial tone. R. the Marble Palace, R. 461, 467, where Kabila 178. held various meetings.2 Mwembie’s job in- volved editing and/ or creating press releases Around 1:30 p.m. the military ordered that regarding the meetings, based on reports she each person return to his work station, ex- received from others. R. 186-187. plaine that the Marble Palace was under siege, and said no one was to leave the palace. Her job went well until January 16, 2001, R. 461, 467. Mwembie did not know whether when she heard gunshots, during which every- it was the police or the military that told them one panicked. R. 461, 467. Soldiers and other not to leave the palace and that they had been people were running everywhere. R. 461, 467. taken “hostage.”3 R. 179-80. Because of the At first, Mwembie and others in her office hid large number of soldiers present, she thought under their desks; she was shaking. R. 177. they consisted of not only the military guard of The gunshots lasted about thirty minutes. the president working at the palace, but also R. 177. some other soldiers from the outside. R. 149.

Mwembie remained at her desk till 10:00 p.m., when the military put everyone into a 1 The opinion of the immigration judge (“IJ”) incorrectly calls the former president “Lavent Cabila.” 2 3 The IJ’s opinion states that the Marble Palace During cross-examination, the Department of was the “governmental palace” and that “all of the Homeland Security insisted that Mwembie and the government’s business was conducted out of the others were not taken “hostage” but were only “de- governmental palace.” This finding has no support tained for questioning,” because the police do not in the record. Mwembie testified that the Marble take hostages. R. 79-80. The assumption that the Palace was used for meetings; she never said it was police in a country with confirmed human rights used to conduct “all” government activity. R. 141, abuses never take anyone “hostage” reflects not 143. only a lack of familiarity with foreign country conditions, but also insensitivity to misunderstand- Mwembie also testified that apparently around ings resulting from the use of translators. Iao v. 100 to 200 civilians were arrested at the palace and Gonzales, 400 F.3d 530, 533-34 (7th Cir. 2005) that all civilians there were arrested. R. 181. If in- (describing these two problems and a few others as deed the palace were the seat of the DRC “gov- “disturbing features” present in a large number of ernment,” including all the ministries (e.g, finance, cases reviewed by the Seventh Circuit). If Mwem- tourism, education, health, interior), from which bie used a word in the Lingala language akin to the “all” government business was conducted, it would word “sequester” to describe the fact she was not have provided office space for more than 100 to 200 allowed to leave the building, a closer translation is civil servants. probably “taken hostage” rather than “detained.”

jeep,4 R. 147, where they were ordered to lie ing, Mwembie was told she had been arrested down and close their eyes, R. 468. Someone because she was working at the palace on the asked where they were being taken and why, day Kabila was killed. R. 161. There were and in response the soldiers beat the person three judges who interrogated them. R. 161. with a baton, causing his nose and mouth to The interrogators told her they had talked to bleed; the soldiers then explained that everyone her friends, who had said she had given infor- had to be quiet and did not have the right to ask mation to outsiders about when Kabila was in questions. R. 468, 148. the palace and that she had enabled the out- siders to enter the palace. R. 152. Mwembie Mwembie and the others were taken to a big told them she had no involvement in Kabila’s room, where they were kept for two days. death or knowledge of who had killed him. R. 150. She explained that everyone working R. 469, 153. The women were instructed not at the palace (approximately 100 or more peo- to talk to each other about the interrogations. ple) were taken to that room. R. 181. On the R. 153. third day, the women were separated from the men, and all the women that worked in Mwem- The guards in charge of Mwembie’s cell bie’s department were taken to one prison. beat and raped each of the women in the cell R. 150. on a daily basis, each taking a turn while the others held the woman down, or watched. There, Mwembie and five other women from R. 155, 157-158, 160. Mwembie was one her department were taken to a cell, R. 150, month pregnant at the time of her detention. which she described as one-third the size of the R. 160. On one occasion when she was raped, courtroom. R. 181. They were shown a rug on she suffered a miscarriage, causing her to lose which they were to sleep and five or so soldiers blood and then consciousness. R. 157, 159. that were supposed to watch over them. R. She was traumatized over this experience. 150. Mwembie did not know how many R. 159. The guards, however, took no mercy women were in the prison and could not on her and continued to rape her even after the estimate how many had been arrested on Janu- loss of her child. R. 160. ary 16. R. 181. They were fed a single piece of bread and tea mixed with milk once a day and One day, during an interrogation, Judge Gi- were allowed to use an outdoor restroom once gal asked Mwembie about her parents and told a day. R. 153. They received no medical her he knew her parents, sister, and aunt and treatment. R. 159. that because he knew her family, he would help her. R. 161-163. He asked for the help Each woman was taken daily to be interro- of Chief Judge Mukumbi,5 who was his uncle, gated. R. 151, 161-62. During her question-

5 The IJ’s opinion incorrectly calls Judge Mu- 4 In her opinion, the IJ also snaps at the use of kumbi three different names in the same paragraph: the word “hostage.” R. 69. She incorrectly states, Mokumbe, Mukumbe, and Makumbe, R. 70, and however, that Mwembie testified that she was taken refers to him incorrectly as Mukumbe thereafter. hostage at about 10:00 p.m., when in fact Mwembie The correct name is Mukumbi, as shown in testified that she was held hostage from 1:30 p.m to Mwembie’s testimony, R. 163, and the asylum 10:00 p.m. R. 147, 467. (continued...)

to organize Mwembie’s escape from prison. R. understand English.6 R. 166. After their 164. admission into the United States, they took a bus to Raleigh, North Carolina, R. 166, where Two days after the judges promised to help her companion left her to return to the Congo, her, soldiers came for her in the middle of the R. 166. night and took her out of her cell; it was well known that when soldiers take someone in the Mwembie then contacted the only person middle of the night, that person will be killed. she knew in the United States, Laurent Mata- R. 164. They did not kill her, however, but put latala,7 who resided in San Antonio, Texas. her into Mukumbi’s car trunk, whereupon he R. 166. Though Mwembie had never met drove away with her in the trunk. R. 164. Matalatala, she knew of him through a friend, and they had exchanged letters and had spoken After thirty minutes, he stopped and made on the telephone. R. 169-170. After con- her change her clothes, R. 164, then she rode tacting Matalatala, Mwembie took a bus to inside the car to the border at Kinsuka, San Antonio, where he picked her up. R. 167. R. 164-165. There, Mukumbi told her that it After hearing her story, Matalatala advised her would be made to appear on paper that she had to apply for asylum and assisted her in filing been killed in prison, so she was never to return her application on September 14, 2001. to the DRC, R. 164, 173, 184, or to communi- R. 167, 176, 482. cate with anyone, R. 473. Gigal, who knew her family, indicated he would explain to her par- II. ents that she had actually escaped the country. The IJ denied Mwembie’s claims, and the R. 172-173. BIA affirmed without opinion. Therefore, the proper focus of our review is the underlying Mwembie then crossed the river and met a decision of the IJ. Garcia-Melendez v. Ash- person who was waiting there with a car. croft, 351 F.3d 657, 660 (5th Cir. 2003). The R. 165. She hid inside that person’s home in IJ devoted most of her opinion to credibility Brazzaville for two weeks until he obtained a determinations and found that Mwembie is passport for her to leave the country. R. 165. ineligible for asylum and withholding of re- Mwembie and this person flew from Brazzaville moval and protection under CAT. to Ethiopia, then to Italy, and finally, to New York. R. 165-166. 6 The IJ inaccurately states that Mwembie en- During the immigration inspection at the tered the United States based on a fraudulent pass- airport in New York on March 17, 2001, port and visa from Belgium. Holders of Belgian Mwembie’s companion presented the fraudu- passports do not need a “visa” to enter this lent Belgian passport he had obtained for her, country, because they receive a visa-waiver. Thus, Mwembie did not enter based on a fraudulent and spoke on her behalf, because she did not “visa,” but on a “visa waiver” obtained under the false pretense that she was a Belgian citizen. 7 There are various spelling of Matalatala’s name in the record. We use the name used in 5 (...continued) Mwembie’s original asylum application of Septem- application. R. 472. ber 14, 2001, which Matalatala helped prepare.

We review this factual basis for substantial theless, the credibility issue because of the evidence. Zhang v. Gonzales, 432 F.3d 339, poor quality of the IJ’s work and because the 343-44 (5th Cir. 2005). Under that standard, parties devote the bulk of their briefs to this we will not disturb the IJ’s findings of fact question. “unless we find not only that the evidence supports a contrary conclusion, but that the Although “[w]e will not review decisions evidence compels it.” Chun v. INS, 40 F.3d 76, turning purely on the [IJ’s] assessment of the 78 (5th Cir. 1994). The alien bears the burden alien petitioner’s credibility,” Chun, 40 F.3d at of proving that “the evidence was so compel- 78 (quoting Mantell v. INS, 798 F.2d 124, 127 ling that no reasonable factfinder could con- (5th Cir. 1986), we have not read this to mean clude against it.” Id. that credibility determinations that are unsup- ported by the record and are based on pure For asylum, withholding of removal, and speculation or conjecture will be upheld. CAT claims, “[t]he testimony of the applicant, Rather, our caselaw interprets this as meaning if credible, may be sufficient to sustain the bur- that where the judge’s credibility determina- den of proof without corroboration.”8 We can- tions are supported by the record, we will not second-guess the BIA or IJ by substituting affirm them even if we may have reached a our credibility judgment for that of the factfind- different conclusion, because we will reverse er. Chun, 40 F.3d at 78. only if the record “compels” a different con- clusion.10 In fact, this is the standard the De Even given this highly deferential standard, however, the IJ’s conclusion that Mwembie did 9 not meet her burden of persuasion on the like- (...continued) an alien must show “a subjective fear of lihood of future persecution if returned to DRC persecution, and that fear must be objectively is not supported by substantial evidence. Al- reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d though we ultimately sustain the IJ’s decision 442, 445 (5th Cir. 2001). by denying the petition for review, it is not be- cause Mwembie has not met her burden of A claim for withholding of removal, meanwhile, proof that she will be persecuted, but because does not require proof of subjective fear, Zhang, she has not satisfied her burden to show that 432 F.3d at 344, but it does require that the alien she will be persecuted “on account” of one the prove a “clear probability” of future persecution, five enumerated reasons.9 We address, none IRS v. Stevic, 467 U.S. 407, 413 (1984): Mwembie must show it is more likely than not that “[her] life or freedom would be threatened . . . 8 8 C.F.R. §§ 208.13(a) (asylum); 208.16(b) because of [her] race, religion, nationality, mem- (withholding of removal); 208.16(c)(2) (CAT). bership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). 9 To be eligible for asylum, an alien must be 10 “unable or unwilling to return to . . . [his home] See, e.g., Lopez de Jesus v. INS, 312 F.3d country because of persecution or a well-founded 155, 161 (5th Cir. 2002) (“[A] credibility deter- fear of persecution on account of race, religion, mination may not be overturned unless the record nationality, membership in a particular social group, compels it.”); see also Kurji v. Gonzales, 140 Fed. or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Appx. 549, 550 (5th Cir. 2005) (per curiam) To demonstrate a well-founded fear of persecution, (“[T]he record does not compel a credibility deter- (continued...) (continued...)

partment of Justice cites in its brief, though it Congo Brazzaville. During her short two- mistakenly labels Third Circuit precedent as week stay in Brazzaville, she was not allowed coming from this court: to leave the house. So, there is nothing in the record that would contradict her testimony Further, although adverse credibility deter- that she did not and could not say good-bye to minations cannot be based on speculation or her family; in fact, the record compels the conjecture, such findings will be afforded opposite conclusion. substantial deference where it [sic] is grounded in evidence in the record and The IJ also found that Mwembie’s testi- where the [IJ] provides specific cogent rea- mony was vague because she gave few details sons for her determination. Abdulrahman v. of her life in prison “other than consistently Ashcroft, 330 F.3d 587, 597 (5th [sic] Cir. stating that she was raped daily and interro- 2003). gated.” To the contrary, Mwembie described prison life in detail. She explained what type Many of the key findings by the IJ are not of food she received, how often, how many supported by the record and are based on pure times she was allowed to use a restroom, how speculation or conjecture. For example, the IJ many cellmates she had, and how big her cell found it implausible that Mwembie fled her was. She gave the number and names of the country without saying goodbye to her family. judges and the number of soldiers guarding her To reach this finding, however, the IJ should cell and described in detail the episode leading have had more information. to her miscarriage.

There is nothing in the record to suggest that In discrediting Mwembie’s testimony as aliens fleeing from prison to a different country vague, the IJ pointed out that Mwembie did usually go home to say good-bye. In fact, the not state the date on which she was released BIA has rejected such a speculation and has from prison. The record compels a different found that it is not unreasonable for an asylum conclusion, however. Mwembie testified that applicant to flee his country, leaving family she fled to Congo Brazzaville on the night of behind, where returning to his or her family her escape. She also wrote in her asylum ap- members would put his life in danger. In Re plication that she fled her native county on B-, 21 I&N Dec. 66 (BIA 1995). March 1, 2001. R. 475. Accordingly, in light of the fact that she escaped from prison on the Mwembie did not have control of where day she fled to Brazzaville, she must have es- Mukumbi was driving while she was in the caped on March 1 as well. This date is consis- trunk of his car. Further, Mwembie escaped to tent with her account that she spent six weeks a different country during the night of her es- in prison (having been imprisoned on January cape from prison: She fled from the DRC to 16, 2001), that she spend about two weeks in Brazzaville, and that she arrived in the United States on March 17. 10 (...continued) mination contrary to that of the IJ.”); In re A-S-, 21 The IJ also found that Mwembie’s testi- I&N Dec. 1106 (BIA 1998) (explaining that the mony that she was raped daily is implausible BIA generally defers to and adopts the IJ’s because “the brutality that [she] has described credibility determination if supported by the record).

is simply not comprehensible.” R. 77. This is many women were in the prison, she never tes- error. tified that there were no other women there. She merely had no information with respect to That brutality is extraordinary does not that. The IJ’s finding is not supported by sub- render it implausible. Under the IJ’s logic, stantial evidence in the record, which compels Jews fleeing Nazi Germany and describing the a contrary conclusion. concentration camp atrocities would have been denied asylum because the brutality they de- The IJ also found it implausible that two scribed would be “incomprehensible.” judges helped Mwembie escape when it was in their power to release her. But, there is no in- Absent more information about Congolese dication in the record that the “decision to re- guards watching prisoners for the military tri- lease her was in their hands.” There is no hint bunals, the record does not support a conclu- that any suspect was released before trial, and sion that the brutality was incomprehensible. In the verdict was rendered almost two years fact, the record shows that several defendants after January 16, 2001. R. 287. Indeed, the in the Kabila trial were tortured in prison. fact that as many as fifty people were found R.431. The record also does not contain in- not guilty suggests that no one was released formation that would challenge the claim that prior to trial. R.287. the soldiers were brutal. To the contrary, the record shows that the Congolese guards ap- Therefore, if indeed one of the judges was parently told Mwembie that she deserved to be a friend of Mwembie’s parents, it is plausible raped and die because she was a criminal. that he would have helped her get out of pri- R. 470-471. This justification for brutality is son before trial, given that prison meant daily far from incomprehensible. rape and a slice of bread per day for several more months. Further, we have no informa- Thus, given the justification the guards of- tion on whether the interrogating judges would fered for their brutality, there is no reason to have been the same judges presiding at trial. think they aspired to be “comprehensible” per- If they were not the same, they presumably secutors who rape less than daily. Also, be- could not have helped release her.11 cause the record indicates that Mwembie was not allowed to have a lawyer or to see her The IJ also found it implausible that the family, there was no apparent external pressure judges would make it appear on paper that that would keep the soldiers in check. Mwembie had been killed, but on the other hand telling her family she had escaped. The IJ also found it implausible that five Again, this is not a rational reason for which guards were guarding six female prisoners. any “reasonable factfinder” could ever find a That finding would be defensible if indeed there were any evidence that the guards were guarding only the six female prisoners in 11 Although the Department of Justice points out Mwembie’s cell. There is, however, no evi- that it “strains credulity” that a judge would risk dence that her cell was the only one in the pris- his career for Mwembie, here the risk of saving the on or that the guards did not guard any other innocent daughter of a friend or neighbor from cells. Although Mwembie could not say how daily rape and possible death may have been deemed worth taking.

testimony implausible. There is absolutely no pels a different conclusion. inconsistency between the two actions: The judges, who are friends of Mwembie’s family, The IJ took issue with Mwembie’s testimo- wanted the DRC government to think she was ny that she memorized and remembered Matal- dead so it would not harass her family after her atala’s phone number; the IJ thought that no escape, and the judges also wanted her family one who suffered daily rape for six weeks to know she in fact was safe. There is nothing could remember a phone number. To make in the record to suggest otherwise. that decision, however, the IJ would need to know several facts not in the record: How The IJ also found implausible Mwembie’s often did Mwembie call Matalatala before her account of being detained for more than two imprisonment; how good was Mwembie’s days, because the IJ thought that the record memory generally; and how is long-term shows that the only women who were detained memory affected by six weeks of prison and were married to other suspects. This statement rape? Though Mwembie indicated she lost misreads the record. consciousness after one of the rapes, there is no indication that the rapes affected anything The newspaper articles and reports state that other than her short-term memory. “at least three women were arrested and tried for and on behalf of their husbands, R. 287; In fact, it is quite plausible that Mwembie “the suspects included 10 civilians, among remembered Matalatala’s phone number, be- which five women,” R. 292; “a number of the cause she testified that she did not call him female defendants may be . . . detained simply from her mobile phone but from a phone because they were related or married to sus- booth, where the cost was one dollar a minute. pects still at large,” R. 302; and “Kabila’s for- Because she had to dial the full number every mer guards and aides, as well as the wives and time, it is more likely that she would have girlfriends of suspects are charged with a role in memorized it. the assassination, R. 434. Therefore, the fact that “at least three women” were arrested on Therefore, the IJ’s reasoning why Mwem- behalf of their husbands does not indicate that bie could not have remembered the phone only those women, or only those types of wom- number is not only not supported by the re- en, were arrested; more information is needed cord, but also not “rational.” Although we to draw that inference. agree with the premise of Dia v. Ashcroft, 353 F.3d 228, 362 (3d Cir. 2003) (en banc) (Alito, Similarly, the record shows that “a number J., dissenting), that an IJ can base some of his of female” defendants were arrested on behalf determinations on his understanding of general of their husbands, not that “all” women were. human behavior, such understanding must be Also, the record indicates that not only the “rational.” Here, the IJ’s finding is not ra- wives of suspects, but also a number of Kabila’s tional, and the record compels a different re- “guards and aides” were arrested: As an sult. See INS v. Elias-Zacarias, 502 U.S. 478, employee at the Marble Palace, Mwembie can 481-84 (1992). be considered to have been a presidential aide. Therefore, there is nothing in the record that What is most troubling about the IJ’s opin- supports the IJ’s finding, and the record com- ion, is not, however, her incorrect and irratio-

nal assumptions about human behavior and Also, an item of identification that Mwem- especially the behavior of people from foreign bie submitted with her application indicates, cultures, such as her assumptions about a vic- albeit in French, that during 2000-2001, she tim’s ability to remember phone numbers, about was a first-year student in molecular biology at all aliens’ behavior in saying good-bye to their the University of Medicine. R. 483. She did families before fleeing, or about the “in- not mention this fact; rather, her application comprehensible” brutality of the persecutors. It seems to indicate she never attended post-sec- is rather the IJ’s lack of familiarity with the ondary education other than a computer record and her inability to comprehend it, as course. R. 454. According to the educational demonstrated by her misspelling of the presi- history she provided in her asylum application, dent’s name, her three different misspellings of Mwembie only attended high school and a Mukumbi in the same paragraph, and her computer course and graduated from the com- fabrication of facts not in the record (such as puter course in 1997. R. 454. Also according her statements that “all” of the government’s to the record, Mwembie was a mother of business was conducted out of the Marble three, and had her first two children when she Palace and that only women married or related was 15 in 1988 and her third child when she to male suspects were detained in the Kabila was 22. Thus, apparently she was able work investigation). as a communications secretary, be a university student in a challenging subject such as There are other serious flaws in the IJ’s an- molecular biology, and be the mother of three, alysis. For example, in her asylum application all at the same time, during 2000-01. Though Mwembie indicated that it was one of the sol- this could be plausible if, for instance, she at- diers who took her to a judge to be interrogat- tended classes at night, the IJ should have ed, who asked her who her parents were and explored this issue. told her he knew her family because they were neighbors in Lubumbushi, Katanga. R. 471- III. 472. Mwembie then explained that two days Despite these enormous shortcomings in later that soldier, who is now called the “Com- the IJ’s performance, we sustain her decision mander,” took her to the judge and said she by denying the petition for review because she was the daughter of Mwembie and that Mu- also found that Mwembie was not persecuted kumbi told the Commander he would help her. on “account of any of the five reasons enumer- R. 472. Then, a few days later, Mwembie es- ated under the Act.” Although the IJ did not caped in the trunk of Mukumbie’s car with the further elaborate, this was the correct way to help of Mukumbie and the Commander, now dispose of the claims, which both require that called “Commander Mukumbi.” R. 472. Mwembie have been persecuted on account of “race, religion, nationality, membership in a Mwembie testified, however, that it was Gi- particular social group, or political opinion.” gal, at interrogation, not one of the soldiers, who asked who her parents are. He knew her In her various filings, Mwembie asserted parents, too, but from Russia, not from Lubum- that she was persecuted because of her “im- bashi. Also, it was Mukumbi, not Commander puted political opinion” and her “membership Mukumbi, who helped her escape. These in- in a social group.” The IJ, however, found consistences deserved further probing. that she was detained because of “legitimate

investigation” into the assassination, R. 79, and show that he was a member of a group of per- this finding is supported by substantial sons that share a common immutable evidence. characteristic that they either cannot change or should not be required to change because it is In other words, even if Mwembie’s account “fundamental to their individual identities or is believable, she claims, in her asylum applica- consciences.”13 tion and testimony, that she was imprisoned because she was in the building at the time of Mwembie, like the taxi drivers in Acosta, the assassination. Even if the investigators be- can change her employment and thus her stat- lieved she was involved in a political conspiracy us of “government employee.” Because she to overturn the Kabila regime, they were can change her employment, which is not fun- investigating her solely because she was a damental to her identity or conscience, she criminal suspect in a murder, not because she does not belong to a “social group” of govern- was against the Kabila regime. Therefore, she ment employees working at the Marble Palace. was ineligible for asylum or withholding of In any event, the record shows that she was removal.12 not imprisoned “because” she belonged in the group of government employees working at Mwembie also claims she was persecuted on the Marble Palace, but “because” she was a account of membership in a particular social criminal suspect. group, “government employees.” R. 25. Even if “government employees” were found to be a IV. cognizable social group, there is no evidence We also deny the petition for review on the supporting the claim that all DRC government CAT claim. To secure relief under CAT, an employees were targeted or persecuted. To alien does not need to show persecution based the contrary, it appears that only about one on one of the five protected characteristics for hundred government employees at the Marble claims of asylum and withholding of removal. Palace, not all government employees in Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir. general, were singled out for “persecution.” 2002). Thus, if Mwembie claims she will be raped in prison or sentenced to death14 because Even if the group were defined to be “all she was a criminal suspect in Kabila’s assassi- government employees at the Marble Palace,” nation, she might have a torture claim even if this would not meet the definition of “social group.” To establish that he is a member of a “particular social group,” an applicant must 13 Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 352-53 (5th Cir. 2002) (citing Matter of Acosta, 19 I&N Dec. 211, 233, 1985 WL 56042 (BIA 12 Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir. 1994) 1985) (rejecting claimed social group of Salvador- (finding that police interrogated petitioner because an taxi cooperative because characteristics that they were seeking information relating to a terrorist defined taxi drivers are not immutable)). incident, not because he was Kurdish or because he 14 wanted discrimination against Kurds to end); Lwin We do not address the issue of whether a rape v. INS, 144 F.3d 505, 509 (7th Cir.1998); Dinu v. or a killing of someone in custody by a government Ashcroft, 372 F.3d 1041 (9th Cir.2004); Shardar v. official who was holding the person in custody Ashcroft, 382 F.3d 318, 323-24 (3d Cir. 2004). constitutes torture.

she does not have an asylum claim.15 tured because she would be viewed as a “gov- ernment opponent due to the timing and cir- Under CAT, the alien must meet the “higher cumstances under which she left her country.” bar” of proving it is more likely than not that he A “reasonable possibility” standard is less than will be tortured if returned to his home country. a “more likely than not” standard. Mwembie Id.16 To meet this burden, he may produce does not further elaborate on the torture issue evidence of past torture, an inability to relocate and does not brief the CAT claim at all or cite to a safer part of the country, human rights legal precedent. Therefore, because she is un- abuses committed within the country, and any able to point out on appeal why it is more like- other relevant information. See 8 C.F.R. § ly than not that she will be tortured, she has 208.16(c)(3). waived her CAT claim.17

Mwembie’s appellate brief only claims that The petition for review is DENIED. there is a “reasonable possibility,” not that it is “more likely than not,” that she would be tor-

15 The viability of a torture claim under this circumstances would depend, however, on whether the “non-political crime” exception applies, because according to her story, Mwembie is a suspect in a murder case, and it may not be prudent for American, rather than Congolese, courts to de- termine her guilt or innocence, absent proof that she will be found guilty regardless of her actual guilt or innocence. We do not resolve this question, because Mwembie’s torture claim fails for a different reason.

16 The relevant regulation defines torture as

any act by which severe pain or suffering, whether physical or mental, is intentionally in- flicted on a person for such purposes as obtain- ing from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, 17 when such pain or suffering is inflicted by or at See, e.g., Calderon-Ontiveros v. INS, 809 the instigation of or with the consent or F.2d 1050, 1052 (5th Cir. 1986); see also Mediou- acquiescence of a public official or other person ni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002) (“As acting in an official capacity. [the petitioner] did not brief his claim under the Convention Against Torture on appeal, we consider 8 C.F.R. § 208.18(a)(1) (2000). the argument waived.”).