NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0111n.06
No. 10-4477
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

J EAN WYCL I F ND AYI SABA, Petitioner,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW OF A FI NAL ORDER OF THE BOARD OF I MMI GRATI ON APPEAL S

BEF ORE: MOORE, GRI FF I N, and WHI TE, Circuit J udg es. GRI FF I N, Circuit J udg e. Pe t i t ioner J ean Wy clif Nday isaba, a native and citizen of Rwanda, applied for asy lum, withholding of remova l, an d relief under Article I I I of the Convention Ag ainst Torture (“CAT” ), claiming he would be perse cuted at the hands of the Rwandan g overnme nt on acc ount of his status

as a member of the Hutu tribe and Seventh Day Adventist (“SDA” ) Church. Nday isaba t es t i fi ed befor e the I nterna tional C ri m i n al T ribunal for Rwanda (“I CTR”) on behalf of a fellow Hutu and 1

The F ifth Circuit ex plained the historica l orig ins of the I CTR as follows: 1
Rwanda has been the source of ong oing ethnic conflict betwee n members of the majority Hutu and minority T u tsi tribes. In April 1994, President J uvenal Haby arimana of Rwanda, a Hutu, was killed when his ai rc ra ft cra shed due to an artillery attack. The cra sh trig g ere d a wave of violence by the Hutus ag ainst the Tutsis, which resulted in the deaths of betw ee n 500,000 and one-million persons. Tutsi rebe l s t ri u mphed over the Hutus, and the Tutsi-dominated g overnme nt then reque sted the U.N. to cre ate a n international wa

r cr imes tribunal. An investig ation by the U.N. established that the mass exterminations of the Tutsis – moti v ated byNo. 10-4477

Ndayisaba v. Holder

SDA member acc used of g enocide

. An I mmigration J udg e (“I J ”) deter mined that Nday

isaba failed
to establish his elig ibilit y for relief

. The Boa

rd of I mmigratio n Appea ls (“B I A”) dismiss ed his
appea l, and Nday

isaba petitioned us for revie w. Be cause the administrative rec ord does not compel

a conc lusion contrary

to the one re ache d by

the I J and B I A, we de ny

the petition.
I

. Petitioner Nday

isaba enter ed the United States on a non-immigra nt visitor visa. He rema ined past his authorized period of stay and later filed an application for asy lum, withholding of remova l, and rel i ef u n d er CAT, all based upon his fea r of being prosec uted, tortured, or killed beca use he testified bef

ore the I CTR on behalf of a fellow Hutu a

nd SDA member on tria l for g enocide

. The Depa rtment of Ho m el an d Security subsequently serve d Nday isaba with a Notice to Appea r (“N TA”) , char g ing him with remova bility for rema ining in the United States longe r than permitted. His application for relief was ref err ed to the Detroit I mmigration Court. At his first court
appea ranc e, Nday

isaba admitted the fac tual alleg ations in the NTA, conce ded remova bility , and

rene wed his re quests for a sy lum, withholdi ng of re moval, and re lief under CAT.
At a merits hear ing, Nday isaba offe red h i s t es t i mony and the testimony of former U.S. Attorney Gene ral Ramsey

Clark. Clark ser

ved as c ounsel for Elizaphan Ntakirutimana, on whose

et h nic hatre d – had been planned for months. The Security Council adopted Resolution 955, which cre ated the I CTR to prose cute and to punish the individuals responsible for th e v iolations in Rwanda and its neig hboring states betwee n J anuar y 1 and De cembe r 31, 1994. Ntakirutimana v. Reno , 184 F.3d 419, 421- 22 (5th Cir. 1999). - 2 -No. 10-4477

Ndayisaba v. Holder

behalf Nday

isaba testified befor e the I CTR. The I J summa ri z ed the testimony and made finding s as follows: The responde nt is a Rwandan Hutu and a pastor fo r t h e Seventh Day Adventist (“SDA” ) Chu rc h

. He was born in Kibuy e, Rwanda on September 5, 1961. The responde nt fea

rs returning to his home country based on his belief that he will be subje ct ed t o t o rt ure or death beca use of his status as a Hutu relig ious leade r who testified befor e the I CTR in supp o rt o f another Hutu acc used of g enocide

. After surviving the 1994 Rwandan g enoc i d e h e fl ed with his wife and daug hter to the neig hboring Democr atic Republic of Co n g o (“D RC”). After leaving Rwanda, the responde nt spent time living and working in DRC, Nig eria , Tog o, Bur kina Fa so, Be nin, and Ghana

. The responde nt’s wife and daug hter are curr ently living in Ghana

. At the end of the 1994 Rwandan g enocide , instiga t ed b y Hu tu rebe ls, many Hutus fled Rwanda fea

ring reta liation by Tutsis. The responde nt be g an to fea r for his and his family ’s safe ty upon lear ning that a g roup of Catholic Church bishops wer e killed in Ma y of 1994. Additionally , he hear d repor ts that Tutsi rebe ls planned to kill any Hutus they came acr oss and radio broadc asts called for Hutus t o surre nder or flee

. The re spondent fled the c ountry to DRC with hi s family

on J uly 17, 1994. Whil e in DRC, the responde nt worke d for an unacc ompanied minors camp being run by the Adventist Deve lopment and Relief Ag ency . I n Aug ust of 1994, upon hear ing that the Rwanda Patriotic Fr ont (“RPF” ), th e Tutsi led army , had soldiers in the ref ug ee camps, the responde nt decide d to leave DRC for Nig eria out of fea r of what would happen to him if the RPF lear ned of his pr esenc e at the camp. This f ear was based on the belief that he would be in dang er beca use he was a high- profile prea cher in Rwanda a

nd was we ll known to the gove rnment. The responde nt and his family resided in Nig eria from October 1995 until Dec ember 1996. During this time he was living at the Adventist Semi n ar y o f West Afric a, I lishan-Remo, but was unable to acquir e humanitarian assistance and was forc ed to leave when the seminary rea liz ed he was not sponsored by t h e Rwanda Union Mission. The next country the responde nt trave led to was Tog o, wher e he lived with his family until J une 1997. During this time the responde nt was able to volunteer and work. He also obtained some limit ed financ ial assistance (US $50) from the United Nations Hi g h Commi ssioner for Refug ees (“U NHCR”). The responde nt beg an to fea r [for] his safe ty in T og o afte r sever al churc h members criticized his pr esenc e in Tog o, and acc used him of participa ting in the 1994 kill i n gs . I n J une of 1997, the responde nt left Tog o for B urkina F aso. - 3 -No. 10-4477

Ndayisaba v. Holder

The responde nt lived in Bur kina Fa so until 2002. Whil e there , the responde nt applied for asy

lum throug h UNHCR and rec eived provisional ref ug ee status pending [a] deter mination by the National Commi ssion fo r R efug ees. Also while living in Bur kina Fa so, th e re s pondent was contac ted by Ramsey Clark (“Clar k”), defe nse counsel for an individual char g ed with g enocide by the I CTR. Clark was looking for people who could testify on behalf of his client and asked the responde nt if he would be willing to help. Although he was scar ed of the possible conseque nces of testify ing befor e the I CTR, he eventua lly ag ree d and made arr ang ements to leave Bur kina Fa so for Tanzania. When the responde nt and his f amily rec eived their ref

ug ee passports they wer e mi stakenly under the im p re s s i o n that they had rece ived asy lum status in Bur kina Fa so. Both the responde nt and his wife wer e called t o t es t i fy as defe nse witnesses for defe ndants befor e the I CTR. I n order to pr otect their identities so they would not [2 ] be in dang er as a result of t heir testim onies bot h we re gi v en witness numbers: the responde nt was Witness # 5 and his wife wa s Wit ness # 22. During his testimony , howeve r, t h e p ro s ecutor, in a surprise move, asser ted that the responde nt had participa ted in g enocide and was g uilty of raping three women. This, coupled with information about his backg round that was reve aled during h is testimony , led to news repor ts in Afric a that a “y oung Adventist prea cher ” and star of the churc h had been ac cu s ed o f g enocide by the I CTR prosec utor. After he g ave his testimony the responde nt was fea

rful of what would happen to him beca use he knew of many SDA prea cher s who had been acc used of g enocide and jailed in Rwanda. The responde nt and his family hoped to sta y in a safe house in Tanzania until they could be assure d further protec tion by the I CTR, but shortly afte r they g ave their testimony they wer e forc ed to leave

. Be cause the responde n t re fu s ed to leave the safe house without assura nces that he would be protec ted, he was handcuf fed and driven to the airport. T he chief of the Wit ness and Victims Support Section for the I CTR trea ted th e responde nt and his family in a hostile manner , did not allow t h em to take their possessions with them when they left the safe house, and threa tened to send them back to Rwanda, calling them interahamwe , a milit ary g roup known for participa ting in the g enocide

. They wer e flown back to Bur kina Fa so, but once they returne d they no longe r had the trave l documents issued to them befor e leaving for Tanzania. Out of fea r that they would be sent back to Rwanda by the g overnme nt of Bur kina Fa so, they fled to B enin.

The defe ndants wer e Ntakirutimana and his son. Both wer e found g uilty of aiding and 2 abetting g enocide , and Ntakir utimana was la ter sente nced to ten y ear s in prison.

- 4 -No. 10-4477

Ndayisaba v. Holder

Once in Be nin, the responde nt ag ain soug ht asy lum status throug h the UNHCR. The UNHCR advised him that he would have to return to Bur kina Fa so beca

use it was the first place that he rec eived a provisional UNHCR ref ug ee document. The responde nt continued to f

ear what might happen to him if he wer e forc ed to r eturn to Rwa nda. On the advice of Clark, who sug g ested he would be safe in Ghana , the resp o ndent took his family

there

. The responde nt and his family arr ived in Ghana i n J uly of 2002. The responde nt rema ined there until enter ing the United States on Dec ember 8, 2007. I n Ghana , the responde nt found work at an SDA churc h and serve d as the Ac cr a T er t i ary I nstitut ions Chaplain in char g e of SDA students at sever al Ghana ian educational fac iliti es. Whil e he was living in Ghana , some members of the responde nt’s churc h wer e critica l of allowing an SDA p as t o r “accuse d of g enocide ” to live and work among them. The responde nt and his family continued to live in fea r despite having secur ed steady employ

ment and having lived in Ghana without incident for 5 y ear s. After his a

unt die d in 2007, the re spondent dec ided to tr avel to the United States to v i s i t his aunt’s husband and children. He was able to obtain a non-imm igr ant vi sa to enter the United States and upon arr iving here was issued an 1-94 set to expire on J une 7, 2008. After arr iving in the Uni t ed S t at es, the responde nt trave led to M i ch i gan i n sear ch of a ref ug ee shelter willing to help him obtain asy lum. He rea ched the Fr eedom House on Dec ember 16, 2007. The respond ent applied for asy lum on J une 27, 2008. The responde nt’s wi fe and daug hter are curr ently living in Ghana under expired passports. The responde nt fea rs worsening conditions for his family beca use he has since lost his job as a pastor for the SDA in Ghana and the churc h has asked his wife to leave the house she is curr ently living in. Additionally , acc ording to a letter from a colleague, his wife has rec eived sever al threa tening phone calls from unknown persons. The I J denied Nday

isaba’s reque sts for relief afte r concluding that he had failed to establish elig ibilit y . The I J rec og nized that criminal prosec ution may serve as a prete x t for perse cution wher e it is motivated by a protec ted g round and the punishment is sufficie ntly serious. Although Nday isaba offe red evidenc e that those who testified in support of persons acc used of g enocide had been arr ested and char g ed with g enocide themselves, the I J found “no evidenc e tending to show a nexus betwee n

- 5 -No. 10-4477

Ndayisaba v. Holder
testimony as a witness and being arr ested.” She explained that “[ i ] t is equally plausible that the Rwandan g overnme nt had evidenc e supporting the commission of crimes of g enocide by the individuals who wer e arr ested.” She noted also that Nday isaba had not been char g ed with any crime, and that, aside from the basele ss alleg ations made by the I CTR prosec utor during cross-e x amination, “ther e is no sug g estion that the Rwandan g overnme nt suspects him of wrong -doing or plans to bring char g es ag ainst him.” Finally , the I J declined to adopt the view that “prose cuting crimes of g enocide is mere ly a prete x t for perse cution based on [a pr otected g round,]” rea soning that “[e]very country has a leg itimate interest in investigating and prosec uting serious violent crimes perpe trated on its soil and ag ainst its people.” She denied Nday isaba’s reque sts for withholding of remova l and relief under CAT f

or the same rea sons. The BIA aff

irmed. I t a g ree d with the I J that there was no showing that those arr ested afte r testify ing wer e arr ested beca use they testifi ed

. An d i t found nothing in the rec ord, except for the
I CTR prosec utor’s allegations, showing that the R wanda n g overnme nt suspects Nday isaba of any
wrong doing or intends to char g e him with a crime. I t added that the I CTR prosec utor was
repr imanded for making the basele ss alleg ations; that Nday isaba was permitted to depar t Tanzania

– wh er e the I CTR convene s – without incident and never experience d problems with an y
g overnme nt officia l, Rwandan or otherwise; that his wife also testified in support of the defe nse, and,
apar t from rec eiving vag ue, threa tening phone calls from unidentified individuals in Ghana , wher e she resides, had suffe red no harm; and that n o at t em pt had been made to extradite his wife to Rwanda.

- 6 -No. 10-4477

Ndayisaba v. Holder
Nday isaba timely

petitioned for r eview.
I I

. “B eca use the BIA adopted and supplemented the I J ’s decision, we revie w the opinion of the
I J in conjunction with the BIA’s additional comments a nd discussion.” Cruz-Samayoa v. Holder , 607 F.3d 1145, 1149 (6th Cir. 2010). We revie w issues of law d e n ovo and consider the fac tual finding s of the B I A using the substantial-evidenc e standa rd. Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). The ultimate de termination whether an alien has established past perse cution or a well-founde d fea

r of future perse cution is revie wed u nder the substantial-evidenc e standard. Japarkulov a v. Holder , 615 F.3d 696, 702 (6th Cir. 2010). Under this defe rential standard of revie w,
ag ency finding s “ar e conclusive unless any rea sonable adjudicator would be compelled to conclude
to the contra

ry .” 8 U.S.C. § 1252(b)( 4)(B ); see Khalil i , 557 F.3d at 435; see also Y u v. Ashcroft , 364 F.3d 700, 702 (6th Cir. 2004) (noting that 8 U.S.C. § 1252(b)( 4)(B ) “basic ally codifies the Supreme
Court’s substantial ev id e nce standard” ). We may not reve rse simply beca use we would have decide d the matter diff

ere ntly

. Khalil i , 557 F.3d at 435. “The dispositi on of an application for asy lum involves a two-step inquiry : (1) whether the applicant qualifies as a ref ug ee as define d in 8 U.S.C. § 1101(a) (42)( A), and (2) wh et h er the applicant merits a favorable exercise of discretion by the Att orney Gene ral.” Cruz-Samayoa , 607 F.3d at 1150 (citation and internal quotation marks omitted). “To qualify as a ref ug ee, the applicant
must establish that he or she has suffe red past perse cution on the basis of rac e, relig ion, nationality , social g roup, or political op i n ion; or show that he or she has a well-founde d fea r of [future]

- 7 -No. 10-4477

Ndayisaba v. Holder

pers ec u tion on one of those same bases.” Id. (citation, internal quotation marks, and alterations omitted); see also 8 C.F.R. § 1208.13(b).
To demon s t rate a well-founde d fea r of future perse cution, the alien must show that “‘pe rsec ution is a rea sonable possibili ty ’” should he be sent back to his home country

. Perkov ic v. INS , 33 F.3d 615, 620 (6th Cir. 1994) (quoting INS v. Cardoza-Fonseca , 480 U.S. 421, 440 (1987))

. The conce pt of well-founde d fea r “has both a subjective and an objective component: an alien must
actua lly fea

r that he will be perse cuted upon return to his co u n t ry , an d h e must prese nt evidenc e establishing an ‘objec tive situation’ under which his fea r can be deeme d rea sonable.” Id. at 620-21.
An alien need not show that he “proba bly will be perse cuted if he is deported; ‘[o]ne c an cer tainly have a we l l -f

o u n d ed fea

r of an event happening when there is less than a 50% chanc e of the

occur renc e taking place .’” Id. (quoting Cardoza-Fonseca , 480 U.S. at 431). A we ll-founded f ear of future perse cution can be based on either a likelihood of harm specific ally targ eted at the alien or

a “patter n or prac tice” of perse cution of others simil arly situated. 8 C.F.R. § 208.13(b)( 2)(iii); see Akhtar v. Gonzale

s , 406 F.3d 399, 404 ( 6th Cir. 2005).
We have rec og nized that criminal prosec ution can amount to perse cution. See Cruz-Samayoa , 607 F.3d at 1151. “A petitioner may . . . establish that prosec ution rea ches the level of perse cution if the individual can demonstrate that the prosec ution or criminal investigation ‘wa s
actua lly prete x t for perse cution’ on acc ount of one of the I NA’s enumer ated g rounds.” Id. (quoting Lakaj v. Gonzales , 158 F. App’x 678, 683 (6th Cir. 2005)). We consider the “substance and context” of the lawan alien’ s native country is attempting to enfor ce to determine whe ther the g overnme nt

- 8 -No. 10-4477

Ndayisaba v. Holder

is leg itimately attempting to prosec ute criminal activity , or is instead seeking on l y t o p ersecute
persons on ac co u nt of a protec ted g round. Id. Prosecution under a g ener al law can constitute
perse cution if the punishment is disproportionately sever e to the off

ense. Id. at 1152.
We note first that Nday

isaba has abandone d any claim of past perse cution by failing to raise the issue in his appellate brief. See Terry v. T ys o n F a r ms , Inc. , 604 F.3d 272, 280 n.5 (6th Cir. 2010). Thus, with r espec t to asy lum, we need only consider whether the re cord c ompels a finding that Nday isaba established a re as o n ab l e, well-founde d fea r of future perse cution. We find that substantial evidence supports the deter mination that his fear is not well-f ounded. 3 Nday isaba alleg edly fea

rs being arr ested and char g ed with g enocide upon arr ival in Rwanda beca use he testified befor e the I CTR on behalf of a defe ndant char g ed with g enocide

. Although his application for relief indicates that he seeks relief based on all five protec ted g rounds, his appellate brief argues perse cution only on acc ount of his “ethnicity and testimony befor e the I CTR in support of a Hutu Seventh Day Adventist Pastor acc used of g enocide .” Counsel further clar ified at oral
argument that Nday

isaba fea rs perse cution solely on acc ount of his membership in a particula r social
g roup, which we assume consists of members of the Hutu tribe who testified on behalf of those

acc used o f gen o ci d e. Neither the I J nor the BI A conducte d any analy sis of whether this asser ted
g roup qualifies as a “par ticular social g roup,” and the parties do not addre ss the issue in t h eir

The I J found Nday

isaba cre dible, which means he established the subjective component of 3 his burden. See Akhtar , 406 F.3d at 404 (“The subjective fea r component turns larg ely upon the applicant’ s own testimony and cre dibilit y .” (quoting Capric v

. Ashcroft , 355 F.3d 1075, 1085 (7th Cir. 2004))). The BIA did not disturb this finding

. - 9 -No. 10-4477

Ndayisaba v. Holder
appellate briefs. We assume, without deciding , that Nday isaba’s asser

ted social g roup is sufficie ntly particula rized to war

rant rec og nition as a “par ticular social g roup” for purposes of asy lum and withholding of remova l. See generally Kante v. Holder , 634 F.3d 321, 327 (6th Cir. 2011); In re AM-E & J-G -U , 24 I . & N . Dec . 69, 74 (B I A 2007). Nday isaba asser

ts that any criminal prosec ution would be a mere prete x t for perse cution on

acc ount of his pa st te stimony befor e the I CTR. The I J reje cted this claim. She found no evidenc e
to support the view that prosec uting the crime of g enocide in Rwanda serve s as a prete x t for
perse cuting defe nse wit nesses for their prior te stimony . To be sure , Nday isaba did offer evidence showing th at t h o s e who testified wer e themselves arr ested and prosec uted, but the I J found no evidenc e of a connec tion betwee n testify ing and being arr ested and prosec uted. She found it equally plausible that authorities had leg i timate rea son to believe that those arr ested and char g ed afte r testify ing ha d themselves par ticipated in g enocide

. Contrary to the I J ’s conclusion, howeve r, there is rec ord evidenc e demonstrating that some persons who testi fi ed for the defense were later arre sted, despite a lack of evidenc e to support the

arr es t an d d etention. This sug g ests that they wer e arr ested mere ly as a prete x t for perse cution on

acc ount of their testimony

. Additionally , Nday

isaba offe red an amicus brief filed by the Human Rights Watch (“H RW ”) in an unrela

ted I CTR prosec ution arguing ag ainst the I CTR prosec utor’s reque st to have the matter transfe rre d to a Rwandan court. The HRW argued that the acc used would not get a fa i r t ri al in Rwanda in part beca

use potential defe nse witnesses would be deter red from testify ing out of fea r of

- 10 -No. 10-4477

Ndayisaba v. Holder
being prosec uted by the Rwandan g overnme nt for harbor ing “ge nocidal ideolog y .” The brief indicates that witnesses who appea red for the defe nse in proce eding s befor e the I CTR wer e arr ested and deta ined shortly

afte r they

returne d to Rwanda:
I n sever al case s documented by HRW, witnesses who have appea red for the defe nce at the I CTR wer e arr ested afte r their return to Rwanda. I n one case , the witness was detain ed wi t h out char g e for two y ear s and then rele ased. In another case , in 2005, wher e a witness was himself fal s ely acc used of g enocide , the prosec utor g ener al acknow ledg ed in writing that t h ere was no proof, althoug h as of this writing [on J anuar y 3, 2008,] the per son is still detained. Although these wit nesses and others h ad t es t ified as protec ted witnesses, many in their communities knew of their testimony and attributed the ir arr ests to that testimony

. There is also evidence that the fe ar ha rbore d by potential defe nse witnesses is so strong that many fore g o testify ing on behalf of thos e t h ey know to be innocent. The HRW brief illust rate s one example:
I n the last two months alone, HRW has documented four case s of persons who ref used, out of fea

r, to testify in defe nce of persons whom they knew to be innocent of the char g es ag ainst them. I n a rec ent case , a man who was too frig htened to testify in defe nce of a person who had saved his life and that of more than ten family members br oke down in tea rs while desc ribing his shame to a HRW resea rche r. Ramsey Clark testified reg arding the difficulty in locating persons who could testify on behalf of his clients beca

use many fea

red th at testifying would subject them to arr est, detention, torture, and possible death at the ha

nds of the Rwanda

n g overnme nt simpl y

for testify

ing. Despite this evidenc e of some nexus betwee n testify ing and criminal prosec ution, howeve r, it is equally plausible, as the I J conclude d, that many , if not most, arr ests an d detentions of I CTR defe n se witnesses are leg itimate. I ndeed, as the g overnme nt emphasizes on appea l, the HRW amicus brief e x pressly

“make s no judgme nts on the m erits of the arre sts or indictments” of I CTR defense - 11 -No. 10-4477

Ndayisaba v. Holder

witnesses who returne d to Rwanda. And the fac t that many witnesses wer e arr ested shortly afte r they testified might sug g est that their testimony provided the ne cessa

ry evidenc e to support their a rre st and prosec ution ( though it might also sug g est that the witnesses wer e arr ested and char g ed simply beca use they testified). Given this evidenc e and the differ ent infere nces one may permissibly draw from it, the I J was permitted to conclude that Nday isaba had failed to demonstrate that Rwanda uses basele ss arr est, detention, and prosec ution as a method of perse cuting defe nse witnesses in g enocide

case s. The I J also deter

mined that Nday

isaba’s fea

r was not well-founde d beca use, apar t from his own fe ar, the re w as no other evidenc e that he, specific ally , would be ar rested a nd prosec uted if he
returne d to Rwanda. She noted a lack of evidenc e d em onstrating that the Rwandan g overnme nt suspects him of any

wrong doing or plans to bring char g es ag ainst him. S he noted a lso that he has
not been indicted for any crime by the Rwandan g overnme nt. The BI A added that Nday isaba’s wife, who also testified on behalf of Ntakirutimana, has not been arr ested o r ch ar ged with a crime and “continues to live in Afr ica with her daug hter.”
But this rea soning is faulty

. The fac t that Nday isaba has not been indicted does not fore close

a rea sonable probability that he will be once he returns to Rwanda. Nor does it nece ssarily make it less likely that he will be indicted upon return. Also, the fac t that his wife continues to live safe ly 4
in Ghana , thousands of miles from Rwanda, does not demonstrate that he will not be prosec uted if

Howeve r, Nday

isaba’s counsel admitted at oral argument that Rwanda has indicted persons 4 in absentia , making it less likely that Rwanda intends to indict him if he re turns.

- 12 -No. 10-4477

Ndayisaba v. Holder

he returns to Rwanda

. Cf. Lim v. INS , 224 F.3d 929, 935 (9th Cir. 2000) (holding that the ong oing safe ty of family members in an alien’s country of orig in mitigates a well-founde d fea r when family members are “similarly situated to t h e applicant and thus presumably subject to simil ar risk”); accord Yang L in v. Holder , 320 F. App’ x 428, 435 n.5 (6th Cir. 2009) (pe r cur iam).
Neve rtheless, the rec ord does not compe l the conclusion that Nday isaba’s fea

r of being basele ssly arr ested, detained, and prosec uted when he returns to Rwanda is wel l-founded. I n addition to the fac t that he has not been char g ed with g enocide , there is further support in the rec ord for the I J ’s concl u s i o n . One of Nday isaba’s co-dire ctors at the SDA complex in Mug onero, over which Ntakirutimana presided, has not been arre sted, detained, or char g ed with g enocid e, d es p i te his close aff

iliation with Ntakirutimana during the 1994 g enocide

. Rather, he is working as Presid ent of the SDA Ea st Rwanda Association in Rwanda’ s capital c ity . And althoug h another co-dire ctor has been arr ested and is soon to be tried for g enocide (as of Nday isaba’s immigra tion merits hear ing) , there is no indication that the co-dire ctor testified befor e th e I C T R o n b ehalf of Ntakirutimana, or, if he did, that his testimony was the motivation behind the arr est and prosec ution.
But even if t h e re co rd compelled the conclusion that Nday isaba would be arr ested and char g ed with g enocide wer e he to return to Rw an d a, i t d o es not also compel concluding that a
prosec ution would be a mere prete x t for perse cuting him on acc ount of his t es t i m o n y befor e the
I C TR and his protec ted social g roup status. Nday isaba potentially implicated himself whe n h e testified on behalf of Ntakirutimana, whom th e I C T R l at er deter mined was g uilty of aiding and abetting g enocide

. And “n ei t h er the BI A nor the fede ral court of appea ls has the jurisdiction to

- 13 -No. 10-4477

Ndayisaba v. Holder

deter mine whether [Nday isaba] is, in fac t, g uilty of the [pot ential] char g es levied, and the mere fac t that he procla ims innocenc e is an insufficient b asi s upon which to deter mine that the char g es are prete x tual.” Cruz-Samayoa , 607 F.3d at 1152. Despite re cord suppor

t for a c ontrary

view, the rec ord does not compel the c onclusion that Nday isaba has a rea sonable, well-founde d fea r of being baseles s l y prosec uted on acc ount of his

ear lier testimony

on behalf of one a ccuse d of g enocide

. 5

I I I

. Nday isaba offe rs for our consideration additional information that he contends supports his
reque sts for relief but was appar ently unavailable at his merits hear ing. He has not m ad e cl ear exactly what he wants us to do with this information, s ug g esting at t imes that we should co n s i der it direc tly in these proce eding s and at other times that we should rema nd the matter so the BI A can consider it.
We cannot consider this newly offe red information in the fi rst instance. The statutory provision establ ishing the scope of judicial revie w of a final order of remova l provides that “the
court of appea ls shall decide the petition only on the a d mi nistrati ve record on which the order of

remov al is based .” 8 U.S.C. § 1252(b)( 4)(A) (empha sis added) ; see Bejjani v. United States , 271 F.3d 670, 676 (6th Cir. 2001) (“[T]his Court is prohibited [i n immigra tion case s] from considering

Be cause Nday

isaba cannot car

ry his burden w ith respe ct t o asy lum, he necessar ily cannot 5 do so with respe ct to withholding of remova l. Singh v. Ashcroft , 398 F.3d 396, 401 (6th Cir. 2005). As for Nday

isaba’s CAT claim, we find that substantial evidenc e supports the BI A’s deter mination that Nday isaba fail ed t o d em onstrate that it is more li kely than not that he will be tortured if he is remove d to Rwanda. See 8 C.F.R. § 1208.16(c) (2). - 14 -No. 10-4477

Ndayisaba v. Holder

fac ts not in t he administrative rec ord

. . . .”), abrogated on other grounds by Fe rnandez-Vargas v. Gonzales , 548 U.S. 30 (2006); see a l so 28 U.S.C. § 2347(a) (“U nless deter mined on a motion to dismiss , petitions to revie w order s revie wable under this chapte r are hear d in the court of appea ls on the rec ord of the pleading s, evidenc e adduce d, and proce eding s befor e the ag ency , when the ag ency has held a hear ing whether or not require d to do so by law.”)

. There fore , we cannot consider the new fac ts, and we ha

ve not done so.
Nor can we rema

nd the matter to the BI A so it can consider the new information. The I NA’s revie w provisions specific ally forbid it: “Judi cial revie w of a final order of remova l

. . . is g overne d only by chapte r 158 of Title 28 [28 U.S.C . §§ 2341-2351], ex cept a s provided in subsection (b) of this section and exc ept that the court may not order the taking of additional evide nce under section 2347( c) of such title .” 8 U.S.C. § 1252(a) (1) ( emphasis adde d); see Fang Huang v. Muk asey , 523 F.3d 640, 656 (6th Cir. 2008) (“[W] e lack a statutory basis for rema nding her case or for supplementing the re cord.” ). Nday isaba is not fore closed from prese nting the new information in support o f h is a p p li c a tion for relief ; it is just that we cannot consider it or order the BI A to do so. He must follow the proper
proce dure for prese nting the evidenc e, which involves filing a m o t i o n to reope n his proce eding s befor e the BIA. See 8 U.S.C. § 1229a(c) (7); 8 C.F.R. § 1003.2(c ); Japarkulov a , 615 F.3d at 702. There are no time limit ations for moving to reope n based on c hang ed cir cumstance s in the alien’s home country so long as the evidenc e is materia l and could not have been discovere d or prese nted previously

. See 8 U.S.C. § 1229a(c) (7)( C)(ii); 8 C.F.R. § 1003.2(c) (3)( ii).

- 15 -No. 10-4477

Ndayisaba v. Holder

I V.
For these re asons, we de ny

the petition for re view.

- 16 -