Ngoy v. Atty Gen USA , 321 F. App'x 208 ( 2009 )

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
4-9-2009
Ngoy v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-1144
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 08-1144
___________
MONGA WAMUNDA NGOY,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A96-207-248)
Immigration Judge: Honorable Robert P. Owens
_______________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 8, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion Filed: April 9, 2009)
_________
OPINION
_________
PER CURIAM
Monga Wamunda Ngoy petitions for review of the Board of Immigration
Appeals’ (“BIA”) final order of removal. For the following reasons, we will deny her
petition.
I.
Ngoy is a native and citizen of the Democratic Republic of the Congo. She arrived
in the United States in 1996 on a student visa and was placed in removal proceedings in
2004 for failure to maintain her student status. She concedes removability, but applied
for withholding of removal and relief under the Convention Against Torture (“CAT”).
She initially sought asylum as well, but her asylum application was untimely and she
withdrew it.
Before the Immigration Judge (“IJ”), Ngoy claimed that she suffered past
persecution and faces future persecution on the basis of her political opinion and
membership in a particular social group, though she never defined either with any
particularity. Her claim of past persecution is based on two incidents. Both incidents
relate primarily to her father, who, during the reign of the previous President Mobutu,
was the Chief Executive Officer of a company owned partly by the Congolese
government. In the first incident, approximately 100 unpaid soldiers and others invaded
Ngoy’s family’s home in Kinshasa during an attempted coup d’etat in 1993. The invaders
ate all their food and ransacked and set fire to their house, but Ngoy was not home at the
time and her family was not physically harmed. Ngoy believes their home was targeted
because her father was wealthy and was associated with the government. In the second
incident, which Ngoy characterizes as an assassination attempt, someone dropped a large
2
rock on her father’s office chair at his place of business (he was not there at the time and
was not harmed). She believes that someone in the Congolese government was trying to
kill him because he had fallen out of favor after refusing to participate in a scheme to
extort money from his company.
Regarding future persecution, Ngoy testified that she fears she will be imprisoned
and raped if returned to the Congo because “the same people who were involved in the
incident in 1993” are in power now. (A.112.)1 She also apparently fears mistreatment
from the populace because it believes that the government is stealing money from the
people and assumes that her father became wealthy through corruption and his
membership in the ruling tribe. (A.111, 140.) Ngoy testified that she remained in the
Congo without harm for approximately three years after the 1993 looting of her family
home. She also testified that her parents remain in Kinshasa and, after living in a
different house until approximately 1998, have lived in the same house that was looted
ever since. She testified that they have received various anonymous threats over the years
but have never been harmed, and she did not testify that she herself had ever been
threatened or that her parents had received threats directed toward her. In addition to her
testimony, Ngoy presented the testimony of her sister and numerous articles and country
1
By way of background, former President Mobutu fled the country in May 1997, at
which time Laurent-Desire Kabila declared himself president. He was assassinated in
2001, and was succeeded by his son, Joseph Kabila. (A.215-16.) Ngoy’s family is of the
Moluba tribe, the same tribe as the Kabilas. (A.111.)
3
reports regarding conditions in the Congo.
The IJ found Ngoy and her sister credible, but denied her claims for withholding of
removal and relief under CAT. The IJ noted that Ngoy had not precisely defined her
political opinion or social group, but construed her claimed social group as “members of
the Moluba tribe whose parents were high officials or wealthy officials in the Congo.” (IJ
Dec. at 5.) The IJ did not specifically discuss whether Ngoy had suffered past
persecution. Instead, he concluded that she had not shown a likelihood of future
persecution or torture because (1) she presented no evidence that she was ever threatened
or would be singled out, (2) she remained in Congo without harm for three years
following the looting and burning of her family home, and (3) her parents have remained
in the Congo without harm ever since. On appeal, the BIA adopted the IJ’s decision and
also explained that the looting and burning of Ngoy’s family home did not constitute past
persecution of Ngoy. Both the IJ and BIA granted voluntary departure. Ngoy seeks
review.2
II.
2
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our review extends only to the
BIA’s decision but, because the BIA both adopted the IJ’s decision and provided its own
analysis, we review the reasoning of both. See Kayembe v. Ashcroft, 334 F.3d 231, 234
(3d Cir. 2003). We review the BIA’s factual findings for substantial evidence and must
treat them “as ‘conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.’” Sioe Tjen Wong v. Att’y Gen., 539 F.3d 225, 230 (3d Cir.
2008) (citations omitted). We have plenary review over its conclusions of law, subject to
established principles of deference on agency review. See id. at 231.
4
On review, Ngoy has expressly waived her CAT claim and concedes that she is
ineligible for asylum. Thus, we review only her claim for withholding of removal. An
applicant for withholding of removal bears the burden of showing that she more likely
than not will be subjected to persecution on one of the five statutorily-protected grounds
if returned to her home country. See Mulanga v. Ashcroft, 349 F.3d 123, 132 (3d Cir.
2003). An applicant’s persecution in the past raises a rebuttable presumption that she is
likely to be persecuted in the future. See Wang v. Gonzales, 405 F.3d 134, 139 (3d Cir.
2005). While the persecution also must be at the hand of a government or of forces that it
is unable or unwilling to control, see Mulanga, 349 F.3d at 132, and Ngoy’s claims
implicate that requirement, neither the IJ nor BIA discussed that issue so we may not
reach it in the first instance. See INS v. Ventura, 537 U.S. 12, 16 (2002).3
Ngoy raises two arguments in her brief. First, she argues that the BIA erred in
concluding that the looting and burning of her family home did not constitute past
persecution, and thus erred and denied her due process by not presuming that she was
likely to suffer persecution in the future. The BIA reasoned that, although the burning
and looting was a “regrettable event, [Ngoy] herself was not at home at the time, and she
3
The BIA wrote that Ngoy failed to demonstrate past persecution “and” a likelihood
of future persecution. (BIA Dec. at 1-2.) It is clear, however—both from the BIA’s
reasoning and its adoption of the IJ’s decision, which sets forth the correct standard (IJ
Dec. at 2-3)—that the BIA concluded that Ngoy had failed to establish past persecution
“or” a likelihood of future persecution. Ngoy does not argue that the BIA applied the
wrong standard in this regard.
5
herself did not experience any direct harm[.]” (BIA Dec. at 1.) We agree that, because
Ngoy suffered no direct harm as a result of that incident, it cannot constitute past
persecution of her even if it rises to the level of persecution of her parents. See Wang,
405 F.3d at 142-144 (explaining why child could not be deemed to have been persecuted
where mistreatment, including destruction of family home, was directed only at parents
and the child suffered no direct harm rising to the level of persecution). Ngoy argues that
the burning of the family home was directed at her because it was an attempt to kill her
entire family. There is no record support for that argument. In any event, Ngoy herself
was not harmed, and thus cannot be said to have been persecuted. See id.
Second, Ngoy argues that the BIA erred in concluding that she had not shown a
likelihood of future persecution in the Congo. Both the IJ and BIA denied this claim
because (1) although Ngoy’s father had received threats, there was no evidence that the
threats were directed at her, (2) she remained in the Congo without harm for three years
after the 1993 incident, and (3) her parents have remained in the Congo without harm
ever since.
Ngoy challenges only the BIA’s reliance on the last of these points. Ngoy does not
dispute that the lack of harm to remaining family members generally is relevant on the
issue of future persecution (Petr.’s Br. at 25), as it is under these circumstances. Cf. Lie
v. Ashcroft, 396 F.3d 530, 537 (3d Cir. 2005) (“[W]hen family members remain in
petitioner’s native country without meeting harm, and there is no individualized showing
6
that petitioner would be singled out for persecution, the reasonableness of a petitioner’s
well-founded fear of future persecution is diminished.”). Instead, she attempts to
distinguish her situation from that of her father by arguing that he is “no longer a public
figure” and “stays in private with his wife and mother,” while she “as a young female
could not reasonably be expected to remain so cloistered.” (Petr.’s Br. at 26.)
But Ngoy does not argue, and presented no evidence, that her remaining family is
in hiding and has escaped persecution only because the government has been unable to
locate them. Cf. Toure v. Att’y Gen., 443 F.3d 310, 319 (3d Cir. 2006). To the contrary,
she testified that her parents and grandmother have, since 1998, lived in the same house
that was looted in 1993. Nor does Ngoy argue that her claim is based on any immutable
characteristic not shared with her parents or that she otherwise would be singled out for
mistreatment. However her political opinion or social group might be
defined—perceived allegiance to the Mobutu regime, or to the Kabila regime, or
membership in the Moluba tribe, or her family’s wealth, or some combination
thereof—she shares all potentially-relevant characteristics with the family members who
have remained without harm. Accordingly, the BIA did not err in basing its decision on
that consideration.
Ngoy also has not identified any evidence of record that compels a contrary
decision, and we have located none. In particular, Ngoy has presented no evidence that
compels the conclusion that she will be arrested, imprisoned and raped on return to the
7
Congo as a result of her political opinion, membership in a particular social group, or on
any other statutorily-protected ground. Accordingly, the petition for review will be
denied.4
4
Ngoy appears to argue that, as a woman, she might be singled out because she is
susceptible to rape. The articles and reports of record describe the pervasive use of rape
as a weapon of war in certain areas of the Congo and recount events that can be described
only as horrific. We are not unfamiliar with these conditions. See Zubeda v. Ashcroft,
333 F.3d 463, 467-68 (3d Cir. 2003). As the IJ noted, however, Ngoy does not claim that
her mother has been raped, and she has presented no evidence compelling the conclusion
that she will be singled out for rape on account of a statutorily-protected ground (or for
any other reason). We sympathize with Ngoy and understand her reluctance to return to
the Congo, but she bore the burden of proving that persecution on her return is more
likely than not. The BIA properly relied on evidence of record in concluding that she had
not met that burden, and the record does not compel a contrary conclusion.
8