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

_____________



### T SEGE 

### S EYOUM



### ,

Petitioner,

VERSUS



### A LBERTO 

### R. G ONZALES



### ,

U NITED S TATES A TTORNEY G ENERAL

,



### Respondent.



### _________________________

Petition for Review of an Order of

the Board of Immigration Appeals



### m A97 195 996

_________________________

Before S MITH

, G ARZA

, and P RADO

, Circuit Judges.

P ER C URIAM : * Tsege Seyoum see ks review of the denial

by the Board of Immigration Appeals (“BIA”)

o f her application for asylum, withholdin g of

removal, and protecti on under the Convention

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

* Pursuant to 5 TH C IR

. R. 47.5, the court has

determined that this opinion s hould not be published and is not precedent except under the limited

(continued...) * (...continued)

circumstances set forth in 5 TH C IR

. R. 47.5.4.2

tion for review.

Seyoum is a citizen of E t hiopia who has

lived in the United States since April 2003.

She alleges persecution

at the hands of the

Ethiopian government for being of Oromo ethnicity and a suspected member of th e Orom o

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

arrested, taken to a prison named Dedessa,

and raped and beat e n repeatedly over the

course of an eight-month stay. At her removal

hearin g s, 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 immigr at ion judge (“IJ”) denied Seyoum’s claims based primarily o n an adverse

credibility determination. In particular, the IJ

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

prison closed in N ovember 2002, the month

before the date of Seyoum’ s alleged escape.

Furthermore, the IJ found that Seyoum’s written statement in her asylum application contradicted her testimony that she h ad no knowledge of the OLF, and that Seyoum had failed

to provide any meaningful corroborating evidence to support her allegations.

The BIA affirmed th e IJ’s order without

opinion. Therefore, the decision of the IJ becomes the basis for this court’s review. S oadjede 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 und er CAT. Z hang v. Gonzales

, 432 F.3d 339, 343-44 (5th Cir. 2 005). 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, 7 8 (5th Ci r. 1994).

The alien bears the burden of proving that “the

evidence was so compelling that no reasonable

factfinder could conclude against it.” Id.

A grant of asylum is discre tionary , and to

be eligible an alien must be “unable or unwilling to return to

. . . [his home] cou ntry because of persecution or a well-founded fear of

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

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

(a)(42)(A). To demonst rate a well-founded

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

be obje c tively reasonable.” L opez-Gomez v.

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

A claim for withholding of removal, meanwhile, does not require proo f o f subjective

f ear, Zhang

, 432 F.3d at 344, but it do es 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 opi nion.” 8 U.S.C.

§ 1231(b)(3)(A).

Finally, to secure relief under CAT, an alien

does not need to show pe r secution based on

o ne 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 m

o re likely than not that he will

be tortured if returned t o his home country,3

id. 1 To meet this burden, he may produce

e vidence 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 informati on. S ee 8 C.F.R.

§ 208.16(c)(3).

The primary evidence Sey o um presented

that she would suffer persecuti on 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

her suspected affiliat

ion with OLF. Therefore,

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

For asylum, withholding of remo val, and

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

if credible, may be sufficient to sustain the

burden of pro of wi thout corroborati on.”

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

(wi thholding of removal); 208.16(c)(2) (CAT).

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

of the factfinder. C

hun

, 40 F.3d at 7 8. “We

will not review decisions turning purely on the [IJ’s] assessment of t he alien petitioner’s

c redibility.” M

antell v. INS

, 798 F.2d 124,

127 (5th Cir. 1986). 2

The IJ’s conclusion th at Seyoum did not

meet her bur den 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 Ded essa 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 indic at es knowledge of the aims of

OLF, but her oral te st imony 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 sev ere pain or suffering,

whether physical or mental, is intentionally inflicted on a person for such pur p oses 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

intimid ating 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 as ylum and withholding-of-removal claims, it cannot foil her CAT

claim, because CAT instructs the IJ to consider the

conditions of the country of removal as well as the

applicant’s testimony. S ee Kamalthas v. INS

, 251

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

claim where IJ “plainly overrelied” on adv erse

credibility determination without considering

country conditions); M

ansour v. INS

, 230 F.3 d

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

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

practice of persecution in Ethiopia but concluded

th at Seyoum did not establish that she was similarly situated to any perse cuted group. Furthermore, Seyoum’s t estimony 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 imp ugn the credibilit y of Seyoum’s entire testimon y, 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.