United States Court of Appeals

Fifth Circuit

FILED

January 25, 2006

Charles R. Fulbruge III

Clerk

In the

United States Court of Appeals

for the Fifth Circuit

_______________

m 05-60044

Summary Calendar

_____________

TSEGE SEYOUM,

 Petitioner,

VERSUS

ALBERTO R. GONZALES,

UNITED STATES ATTORNEY GENERAL,

 Respondent.

_________________________

Petition for Review of an Order of

the Board of Immigration Appeals

m A97 195 996

_________________________

Before SMITH, GARZA, and PRADO, 

Circuit Judges.

PER CURIAM:

*

Tsege Seyoum seeks review of the denial

by the Board of Immigration Appeals(“BIA”)

of her application for asylum, withholding of

removal, and protection under the Convention

Against Torture (“CAT”). We deny the peti-

* Pursuant to 5TH CIR. R. 47.5, the court has

determined that this opinion should not be published and is not precedent except under the limited

(continued...)

*

(...continued)

circumstances set forth in 5TH CIR. R. 47.5.4.
2

tion for review.

Seyoum is a citizen of Ethiopia who has

lived in the United States since April 2003.

She alleges persecution at the hands of the

Ethiopiangovernment for being ofOromo ethnicity and a suspected member of the Oromo

Liberation Front (“OLF”). She claims she was

arrested, taken to a prison named Dedessa,

and raped and beaten repeatedly over the

course of an eight-month stay. At her removal

hearings, Seyoum testified that she escaped

from Dedessa on December 31, 2002, when

the OLF raided the prison and freed its prisoners. She further denied membership in, or

any knowledge of, the OLF and its activities.

The immigration judge (“IJ”) denied Seyoum’s claims based primarily on an adverse

credibility determination. In particular, the IJ

cited a government report and affidavits submitted by Seyoum indicating that the Dedessa

prison closed in November 2002, the month

before the date of Seyoum’s alleged escape.

Furthermore, the IJfound that Seyoum’s written statement in her asylumapplication contradicted her testimony that she had no knowledge of the OLF, and that Seyoum had failed

to provide any meaningful corroborating evidence to support her allegations.

The BIA affirmed the IJ’s order without

opinion. Therefore, the decision of the IJ becomes the basisfor this court’s review. Soadjede v. Ashcroft, 324 F.3d 830, 831-32 (5th

Cir. 2003).

We review for substantial evidence the factual basis for the IJ’s decision that Seyoum is

ineligible for asylum, withholding of removal,

and relief under CAT. Zhang v. Gonzales,

432 F.3d 339, 343-44 (5th Cir. 2005). On

substantial evidence review, we will not disturb the IJ’s findings of fact “unless we find

not only that the evidence supports a contrary

conclusion, but that the evidence compels it.”

Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).

The alien bearsthe burden of proving that “the

evidence wasso compelling that no reasonable

factfinder could conclude against it.” Id.

A grant of asylum is discretionary, and to

be eligible an alien must be “unable or unwilling to return to . . . [his home] country because of persecution or a well-founded fear of

persecution on account of race, religion, nationality, membership in a particular social

group, or political opinion.” 8 U.S.C. § 1101-

(a)(42)(A). To demonstrate a well-founded

fear of persecution, an alien must show “a subjective fear of persecution, and that fear must

be objectively reasonable.” Lopez-Gomez v.

Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001).

A claim for withholding of removal, meanwhile, does not require proof of subjective

fear, Zhang, 432 F.3d at 344, but it does require an applicant to prove a “clear probability” of future persecution if returned to his

home country, IRS v. Stevic, 467 U.S. 407,

413 (1984). Seyoum must show it is more

likely than not that “[her] life or freedom

would be threatened . . . because of [her] race,

religion, nationality,membership in a particular

social group, or political opinion.” 8 U.S.C.

§ 1231(b)(3)(A).

Finally, to secure relief under CAT, an alien

does not need to show persecution based on

one of the five protected characteristics for

claims of asylum and withholding of removal,

Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.

2002), but he must meet the “higher bar” of

proving it is more likely than not that he will

be tortured if returned to his home country,
3

id.1 To meet this burden, he may produce

evidence of past torture, an inability to relocate to a safer part of the country, human

rights abuses committed within the country, or

any other relevant information. See 8 C.F.R.

§ 208.16(c)(3). 

The primary evidence Seyoum presented

that she would suffer persecution or torture if

returned to Ethiopia consists of her testimony

that she experienced persecution in the past

because of her status as an ethnic minority and

hersuspected affiliation with OLF. Therefore,

all three of her claims depend heavily on a favorable credibility determination. 

For asylum, withholding of removal, and

CAT claims, “[t]he testimony of the applicant,

if credible, may be sufficient to sustain the

burden of proof without corroboration.”

8 C.F.R. §§ 208.13(a) (asylum); 208.16(b)

(withholding of removal); 208.16(c)(2) (CAT).

We cannot second-guessthe BIA or IJ by substituting our own credibility judgment for that

of the factfinder. Chun, 40 F.3d at 78. “We

will not review decisionsturning purely on the

[IJ’s] assessment of the alien petitioner’s

credibility.” Mantell v. INS, 798 F.2d 124,

127 (5th Cir. 1986).2

The IJ’s conclusion that Seyoum did not

meet her burden of persuasion on the likelihood of future persecution or torture if returned to Ethiopia is supported by substantial

evidence. Seyoum’s testimony that she escaped from Dedessa prison on December 31,

2002, contradicts not only a State Department

report but affidavits by two Ethiopian natives

submitted by Seyoum to corroborate her testimony on conditions at the prison. Her written

statement indicates knowledge of the aims of

OLF, but her oral testimony suggests ignorance of the organization. The two affidavits

she submitted are identical, word for word,

and provide mainly hearsay evidence. Al1

 The applicable regulation defines torture as 

any act by which severe pain or suffering,

whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining 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, when such pain or suffering is

inflicted by or at the instigation of or with the

consent or acquiescence of a public official or

other person acting in an official capacity.

8 C.F.R. § 208.18(a)(1) (2000).

2

 Seyoum argues that even if an adverse credibility determination defeats her asylum and withholding-of-removal claims, it cannot foil her CAT

claim, becauseCAT instructs the IJ to consider the

conditions of the country of removal as well as the

applicant’s testimony. See Kamalthas v. INS, 251

F.3d 1279, 1284 (9th Cir. 2001) (remanding CAT

claim where IJ “plainly overrelied” on adverse

credibility determination without considering

country conditions); Mansour v. INS, 230 F.3d

902, 908 (7th Cir. 2000) (remanding CAT claim

where adverse credibility determination “overshadow[ed]” petitioner’s torture claim). The IJ, however, did specifically consider the pattern or

practice of persecution in Ethiopia but concluded

that Seyoum did not establish that she was similarly situated to any persecuted group. Furthermore, Seyoum’s testimony relates directly to the

question whether it is likely she will be tortured if

returned to Ethiopia. See Efe, 293 F.3d at 907-08

(distinguishing Kamalthas and Mansour in part

because “the credibility assessment here goes directly to the issue of whether or not [the alien] will

be tortured”). 
4

though a reasonable factfinder might conclude

that this evidence does not impugn the credibility of Seyoum’s entire testimony, we are

certainly not compelled to reach that result.

The petition for review is DENIED.3

3 The motion of attorney Teodora Purcell to

withdraw as counsel is GRANTED.