2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-20-2007

Kibinda v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 05-4237

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Kibinda v. Atty Gen USA" (2007). 2007 Decisions. Paper 1539.

http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1539
PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 05-4237

 

VALERIO FORTUNATO TUALI KIBINDA,

 Petitioner

 v.

ATTORNEY GENERAL OF

THE UNITED STATES OF AMERICA,

 Respondent

 

On Petition for Review from an

Order of the Board of Immigration Appeals

(Board No. A95 381 152)

Immigration Judge: Charles M. Honeyman

 

Argued January 8, 2007

Before: McKEE, AMBRO and FISHER, Circuit Judges.

(Filed: February 20, 2007)
2

Hyung P. Steele (Argued)

Pepper Hamilton

18th and Arch Streets

3000 Two Logan Square

Philadelphia, PA 19103

Michael S. Hino (Argued)

Pepper Hamilton

899 Cassatt Road

400 Berwyn Park

Berwyn, PA 19312

Attorneys for Petitioner

Richard M. Evans

Paul Fiorino

Susan K. Houser (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, DC 20044

Attorneys for Respondent

 

OPINION OF THE COURT

 

FISHER, Circuit Judge.

Valerio Kibinda seeks review of an order of the Board of

Immigration Appeals (“BIA”) affirming the denial of his request
Conflict between the Angolan government and FLEC 1

stretches back to 1975, when Marxist Angolan forces, the

“Movimento Popular de Libertação de Angola” (“Popular

Movement for the Liberation of Angola – MPLA”), invaded

Cabinda, overthrew the provisional government that had been

formed by FLEC, and annexed the region to Angola. Cabinda

is ethnically and linguistically distinct from the rest of Angola

and geographically disconnected from the country.

3

for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”). We have jurisdiction to

review the petition pursuant to 8 U.S.C. § 1252(a) and will deny

the petition.

I. BACKGROUND

Petitioner Valerio Kibinda, a native and citizen of

Angola, is from Cabinda, an oil-rich area administered as an

exclave of Angola since Cabindan and Angolan liberation from

Portuguese rule in 1975. Many Cabindans believe that their

region should be autonomous but the Angolan government

strongly suppresses any such notion. A full-scale civil war

between a Cabindan separatist group, the “Frente para a

Libertação do Enclave de Cabinda” (“Front for the Liberation of

the Enclave of Cabinda – FLEC”), and Angolan government

forces has been ongoing since 1993. The United States 1

Department of State, an ad-hoc commission of the United

Nations, and various humanitarian organizations report that both

Angolan government forces and FLEC have committed human

rights abuses against their perceived enemies in the course of

this bloody dispute.
The first paragraph of this addendum reads: 2

My original affidavit . . . contains a mistake. . . .

4

At age sixteen, Kibinda was identified by the Angolan

government as a talented student and sent, allegedly against his

will, to Cuba for five years of training at a military institute.

After that training was complete, Kibinda was inducted into the

Angolan army, again allegedly against his will, and transferred

to Angolan army headquarters in the capital city of Luanda. By

this time, the Angolan army was fighting rebel forces within

Angola, primarily the “União Nacional para a Independência

Total de Angola” (“National Union for the Total Independence

of Angola – UNITA”), but also FLEC separatist rebels in

Cabinda.

During the time Kibinda was stationed in Luanda, an

incident occurred that forms part of the basis of Kibinda’s claim

of past persecution in this case. An order was issued by the

Angolan army requiring that all officers remain inside the

Luandan military complex due to a violent protest that was

being held in the city by the Bakongo ethnic group. Kibinda

was discovered returning to his barracks from an overnight stay

outside the military complex, which was in violation of the

order, and was detained for five days as a result. Describing this

incident in his original asylum application, Kibinda stated that

he had been arrested and tortured for five days for participating

in the Bakongo protest.

However, in an addendum to his affidavit, submitted the

day before his immigration hearing, Kibinda retracted this

claim. He reiterated that he was detained for five days, but the 2
[I]t refers to an incident in 1993 where I was

imprisoned for a period of five days. . . . [I]t

states that I was accused of taking part in the

Bakongo Revolt of 1992, and that I had been

tortured while in custody and sustained injuries

that required me to be hospitalized for one month.

This is incorrect.

Addendum to Respondent’s Affidavit at 1.

5

only abuse he described was an incident in which a guard threw

an unidentified heavy object into a cell Kibinda shared with six

other soldiers. That object hit Kibinda in the jawbone, causing

an injury requiring seven stitches. He made no further

allegations of abuse or torture in this addendum and attributed

the “incorrect” statements in his original affidavit to an error in

translation.

No further repercussions occurred after the five-day

detention, and four months later Kibinda was selected for officer

training. He graduated from that training as a first lieutenant

and was shortly thereafter selected along with twenty five other

officers for even further military training in Rio de Janeiro,

Brazil. While in Brazil, Kibinda studied war tactics, earned an

accounting degree from a Brazilian university, and met and

married a Brazilian citizen. In the course of the training

program, Kibinda was assigned to monitor a younger Cabindan

cadet. In 2000, at the end of the program, this cadet told

Kibinda of his plans to flee to the Netherlands and seek asylum

there. The cadet gave Kibinda a copy of a FLEC membership

card that had previously belonged to Kibinda’s cousin, telling
6

Kibinda that it would help him find support and assistance from

fellow Cabindans in other countries. Kibinda testified that this

FLEC card was discovered by an officer with whom he shared

living quarters and turned over to his superiors.

Kibinda took the Cabindan cadet to the airport under the

pretense that the cadet was returning to Angola as expected.

Instead, the cadet fled to the Netherlands as planned. When the

cadet failed to report back to army headquarters in Angola,

Kibinda was called in for questioning by his commander.

Kibinda alleges that he was told he would be held accountable

if the cadet did not return to Angola. After this confrontation,

Kibinda decided to leave Brazil and flew to the United States on

a valid tourist visa, apparently with the intention of traveling on

to Canada to seek asylum there. He never went to Canada,

however, but returned two months later to Brazil to collect back

pay of $6,000.00, which was half of what he was owed by the

Angolan army. While back in Brazil, Kibinda was promoted to

the rank of lieutenant and ordered back to Angola, where he was

told he could collect the remainder of his back pay. Suspecting

that the promotion was merely a ruse to “entice” him back to

Angola for punishment, he returned to the United States on his

still-valid tourist visa. His wife joined him on December 23,

2001. On January 10, 2002, Kibinda, acting pro se, filed a

timely asylum application.

At Kibinda’s hearing, the immigration judge (“IJ”) found

that an adverse credibility determination was not warranted, and

that Kibinda had a genuine subjective fear of persecution.

However, he found Kibinda’s subjective fear of persecution was

objectively unreasonable in light of the record. Specifically, he

pointed to the investment made in Kibinda by the Angolan
Alternatively, the IJ found that even if Kibinda had met 3

his burden of establishing statutory eligibility for asylum,

asylum should be denied in the exercise of discretion because

“respondent has not met his burden of proving by a

preponderance of the evidence that he merits a favorable

exercise of discretion because he has not proven that he could

not acquire legal immigration status in Brazil.”

We review the BIA’s refusal to reopen the record to 4

include supplemental documents and remand to the IJ for abuse

of discretion. Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (2003).

The BIA found that Kibinda had failed to adequately explain

7

government, and found that Kibinda’s record of promotion

within the army suggested that he was trusted and valued by the

army and thus unlikely to be persecuted. In addition, he cited

the general rule that fear of conscription and punishment for

desertion cannot form the basis of a cognizable asylum claim,

and found that Kibinda failed to qualify for an exception to that

rule.

Consequently, the IJ concluded that Kibinda’s fear of

persecution was not “well founded” and denied his request for

asylum. Because Kibinda had not met the lower standard of 3

proof for establishing an asylum claim, the IJ concluded that he

necessarily did not qualify for withholding of removal. As for

the CAT claim, the IJ found that the evidence in the record did

not establish that Kibinda was likely to be tortured if removed

to Angola. Kibinda appealed the IJ’s decision to the BIA and

submitted a motion to admit new evidence on appeal, which was

properly denied. The BIA affirmed the decision of the IJ,

4
why these documents, which predated his hearing before the IJ,

were previously unavailable. Furthermore, the BIA found that

these documents were inconsistent with Kibinda’s own

testimony. Therefore, the BIA did not abuse its discretion in

refusing to supplement the record and remand for further

proceedings.

8

adopting its findings and reasoning. Kibinda filed a timely

petition for review.

II. DISCUSSION

In this case, because the BIA adopted the reasoning of

the IJ in its decision, we review the decision of the IJ. Abdulai

v. Ashcroft, 239 F.3d 542, 549 n.2 (3d Cir. 2001). We must

uphold the IJ’s findings if there is substantial evidence in the

record to support them, which is “such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion.” Senathirajah v. INS, 157 F.3d 210, 216 (3d Cir.

1998) (citation omitted). Under this deferential standard, the

IJ’s “finding must be upheld unless the evidence not only

supports a contrary conclusion, but compels it.” Abdille v.

Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001) (citing INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)).

A. Asylum

Kibinda first argues that there is not substantial evidence

for the IJ’s conclusion that he was not statutorily eligible for

asylum. To be eligible by statute, an asylum applicant must

demonstrate refugee status by showing past persecution or a

well-founded fear of future persecution. 8 U.S.C. § 1158(b)(1).
9

In order to establish past or future persecution, an applicant must

“show past or potential harm rising to the level of persecution on

account of a statutorily enumerated ground that is committed by

the government or by forces the government is unable or

unwilling to control.” Fiadjoe v. Att’y Gen., 411 F.3d 135, 160

(3d Cir. 2005) (citation omitted). A showing of past persecution

gives rise to a rebuttable presumption of a well-founded fear of

future persecution. 8 C.F.R. § 1208.13(b)(1).

1. Past Persecution

At the outset, we dismiss out of hand Kibinda’s claim of

past persecution in the form of “torture” during his five-day

detention by the Angolan army. Kibinda argues that the IJ failed

to “develop” the torture claim at Kibinda’s hearing. However,

as already stated, supra, Kibinda unequivocally retracted this

claim in an amendment to his asylum application, describing it

as a mistake attributable to an error in translation. In addition,

Kibinda swore at his immigration hearing that the entire

substance of his application for asylum, as amended, was true

and correct. It is self evident that an IJ has no obligation (or

authority, for that matter) to reach back into the record to revive

and “develop” a claim that a petitioner has explicitly disavowed.

Thus, we reject any attempts by Kibinda to now reassert a claim

of “torture.”

Even so, past persecution need not rise to the level of

torture to be grounds for asylum. In Fatin v. INS, 12 F.3d 1233

(3d Cir. 1993), we accepted the BIA’s definition of the term

“persecution” to include “threats to life, confinement, torture,

and economic restrictions so severe that they constitute a threat

to life or freedom.” Id. at 1240. We made clear that persecution
An alien’s testimony by itself, if credible, can satisfy the 5

burden of establishing a claim for relief by objective evidence.

See 8 C.F.R. § 208.13(a); Dia v. Ashcroft, 353 F.3d 228, 247 (3d

Cir. 2003). Here, Kibinda’s testimony did not satisfy that

burden.

10

refers only to “severe” conduct and “does not encompass all

treatment our society regards as unfair, unjust or even unlawful

or unconstitutional.” Id.

Kibinda’s detention by the Angolan army and the

attendant circumstances of that detention simply do not rise to

the level of persecution as we have defined it. In order to form

the basis for an asylum claim, the conduct complained of must

be “extreme.” Id. at 1243 (“‘[P]ersecution’ is an extreme

concept that does not include every sort of treatment our society

regards as offensive.”). The maltreatment Kibinda experienced

at the hands of prison guards, as offensive as it may be, was far

from unusual or extreme. In addition, the injury Kibinda

suffered as a result of this maltreatment, though it left a scar,

was certainly not severe, requiring as it did only a few stitches.

See Voci v. Gonzales, 409 F.3d 607, 615 (3d Cir. 2005) (“[O]ur

cases suggest that isolated incidents that do not result in serious

injury do not rise to the level of persecution.”) (3d Cir. 2005).

While we do not mean to suggest that the severity of an injury

should be measured in stitches, Kibinda has provided no other

objective evidence to demonstrate that the single injury he

suffered was severe enough to constitute persecution under our

stringent standard.5
Counsel for Kibinda argues “it is reasonable to conclude 6

that the harm [Kibinda] suffered was motivated at least, in part,

by an actual or imputed ground establishing the nexus for a

finding of past persecution.” Reply Br. of Pet’r 7. They fail to

provide any objective evidence, direct or circumstantial,

however, of a link between the incident and Kibinda’s Cabindan

heritage. In INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992),

the Supreme Court explained that an asylum applicant is not

required to provide “direct proof of his persecutors’ motives” in

order to make out a claim of past persecution. Id. at 483.

However, because “the statute makes motive critical, [a

petitioner] must provide some evidence of it, direct or

circumstantial.” Id.

11

Furthermore, even assuming that the injury was severe

enough to constitute persecution, Kibinda has failed to establish

that this maltreatment was on account of a statutorily protected

ground. In fact, the ambiguous circumstances surrounding the

incident – “something” heavy was thrown in the darkened cell

at numerous individuals and hit Kibinda in the jaw – make it

difficult if not impossible to ascertain what motive there was for

the incident and whether or not Kibinda was even the intended

target.6

2. Future Persecution

When an asylum request is based on a fear of future

persecution, a petitioner must show a well-founded subjective

fear, which is “supported by objective evidence that persecution

is a reasonable possibility.” Lin v. INS, 238 F.3d 239, 244 (3d

Cir. 2001). The IJ found Kibinda’s fear of being persecuted
Although the IJ did not find that Kibinda’s overall 7

testimony merited an adverse credibility determination, he did

find it “implausible” that Kibinda was promoted by the Angolan

army even though the army suspected him to be a FLEC

sympathizer.

Kibinda also argues that he would be persecuted by 8

members of FLEC if removed to Angola. However, Kibinda did

not make any such claim before the IJ or BIA and cannot raise

that claim for the first time in a petition for review. See 8

U.S.C. § 1252(d)(1). This statutory requirement, intended to

ensure that the BIA has had a full opportunity to consider a

claim before it is submitted to a federal court, requires that a

petitioner “raise and exhaust his . . . remedies as to each claim

12

based on his suspected Cabindan sympathies was objectively

unreasonable. This finding is supported by ample evidence in

the record that Kibinda had always been valued and trusted by

the Angolan army. The Angolan government selected Kibinda

for ten years of special schooling and officer training and

promoted him twice, to a final rank of lieutenant. In addition,

the record indicates that the Angolan army did nothing to

discipline Kibinda after discovering he had a FLEC card and

that he had helped a Cabindan cadet desert and in fact promoted

Kibinda afterwards. This is “such relevant evidence as a 7

reasonable mind might accept as adequate to support a

conclusion.” Senathirajah, 157 F.3d at 216. Consequently, we

uphold the IJ’s finding that, based on this evidence, there is no

reasonable possibility of persecution if Kibinda is removed to

Angola.8
or ground for relief if he . . . is to preserve the right of judicial

review of that claim.” Abdulrahman v. Ashcroft, 330 F.3d 587,

594-95 (3d Cir. 2003).

13

Kibinda further argues he is entitled to asylum because

the punishment he will face as a deserter will be

disproportionately greater because he is a Cabindan.

Disproportionate punishment may constitute persecution in an

appropriate case. See Matter of A-G-, 19 I. & N. Dec. 502, 502

(BIA 1987) (“Persecution for failure to serve in the military may

be established in those rare cases where a disproportionately

severe punishment would result on account of one of the five

grounds enumerated in section 101(a)(42)(A) of the [INA].”).

This is an exception to the general rule that punishment for

desertion does not constitute persecution for purposes on an

asylum claim. See Lukwago v. Ashcroft, 329 F.3d 157, 168 (“It

is generally accepted ‘that a sovereign nation enjoys the right to

enforce its laws of conscription, and that penalties for evasion

are not considered persecution.’”) (citation omitted).

This record does not support application of the

disproportionate punishment exception to the general rule.

Kibinda’s fear of disproportionately severe punishment based on

his Cabindan heritage is belied by the same record evidence

cited by the IJ in finding Kibinda’s fear of persecution was

objectively unreasonable. Kibinda, despite his Cabindan

heritage, was singled out for special training and promotions

throughout his career, and was always treated by the Angolan

army as a valued and trusted member, right up until the time he

deserted the army and left for the United States. Absent any
Kibinda presents this argument under the rubric of “past 9

persecution” in his brief, but as will become clear from our

discussion, we think it more appropriate to consider the claim as

an aspect of Kibinda’s prospective fears.

14

objective evidence to the contrary, we find substantial evidence

supports the conclusion that any punishment Kibinda may

receive upon removal can therefore only be attributed to his

status as an army deserter.

Next, Kibinda argues he is entitled to asylum based on

his fear of being put in a position that would require him to

commit human rights abuses condemned by the international

community against his own people. See Islami v. Gonzales,

9

412 F.3d 391 (2d Cir. 2005). This exception to the rule that

punishment for desertion is not persecution is relevant to both

past and future persecution. It is generally applicable as a means

of demonstrating past persecution to individuals who have

refused in the past to serve in an internationally condemned

military force and have fled to avoid participation. See id. at

398 (“[T]he past persecution consisted of the Serb-led military

engaging in ignominious activities, and Islami having to flee to

avoid participation in such acts which, in many instances were

perpetrated against his own besieged ethnic/religious

community.”). It is relevant to a fear of future persecution

insofar as courts have recognized that where conscription places

an individual in a position in which he might be forced to

commit acts that the international community condemns,

punishment for refusing to participate in such acts may amount

to persecution for purposes of an asylum claim. See Matter of
Although we need not resolve the issue of whether the 10

Angolan campaign in Cabinda is an internationally condemned

15

A-G-, 19 I&N Dec. at 506, aff’d sub nom., M.A. A26851062 v.

United States INS, 899 F.2d 304 (4th Cir. 1990). See also

Mekhoukh v. Ashcroft, 358 F.3d 118, 126 (1st Cir. 2004);

Mojsilovic v. INS, 156 F.3d 743, 747 (7th Cir. 1998).

Kibinda, of course, has not refused to serve in the

military. In that regard, Kibinda’s case can be distinguished

from Islami, the primary case upon which he relies, in which the

petitioner “escaped from Kosovo . . . to avoid being conscripted

into the Yugoslavian military . . . .” 412 F.3d at 393. We might

concede that this is a distinction without a difference, insofar as

Kibinda alleges that he now refuses to serve in the military in

order to avoid being placed in a position in which he might be

forced to commit internationally condemned human rights

abuses against his own people. We might even concede for the

sake of argument that the Angolan campaign to suppress the

Cabindan separatist movement qualifies as an internationally

condemned campaign, although that question was not resolved

in the briefs or at oral argument.

Even so, Kibinda has presented no objective evidence

that it is a reasonable possibility that he will be placed in such a

position or that he will be punished if he refuses to participate

in a campaign of atrocities against his own people. Kibinda

articulated only a speculative fear of having to fight his own

people, a fear that he had felt since he was first inducted into the

army, and one that never came to fruition in more than a decade

of service in the army. He failed to present any objective 10
campaign, we note that, standing alone, a fear of having to fight

one’s own people may “reflect the unpleasant realities of civil

war” but does not necessarily “contemplate [] ethnic cleansing

and other atrocities.” Mojsilovic v. INS, 156 F.3d 743, 747 (7th

Cir. 1998).

16

evidence that he would be forced to participate in any human

rights abuses if returned to Angola. In fact, he testified that he

had seen combat only once, in the course of a sixteen day battle

against non-Cabindan rebel forces in an area outside of Cabinda.

Furthermore, he presented no objective evidence suggesting that

he would be punished for refusing to participate in any such

activities. “[I]t is the punishment for refusing to serve in an

internationally condemned military . . . that constitutes

persecution. Therefore, when an alien does not wish to be

associated with a military that engages in universally

condemned acts of violence, ‘the only relevant factor is the

likelihood that the alien will be punished.’” Mojsilovic, 156

F.3d at 747 (quoting M.A. A26851062 v. INS, 858 F.2d 210,

214-15 (4th Cir. 1998) (en banc)). As we do not find that the

record evidence is “so compelling that no reasonable fact finder

could fail to find the requisite fear of persecution,”

Elias-Zacarias, 502 U.S. at 483-84, we must uphold the

conclusion of the IJ on this issue.

In summary, applying a deferential standard of review,

we find substantial evidence supports the IJ’s conclusion that

Kibinda had not established past persecution and did not have an

objectively well founded fear of persecution. He is therefore not
Because we uphold the IJ’s finding that Kibinda was 11

not entitled to asylum under the statute, we need not review the

IJ’s alternative ruling that Kibinda would nevertheless be

ineligible for asylum as an exercise of discretion because he

failed to show that he could not resettle in Brazil. However, we

note that under our precedent the Government carries the initial

burden of showing that an offer of “firm resettlement” exists,

Abdille v. Ashcroft, 242 F.3d 477, 486 (3d Cir. 2001), and to the

extent the question of firm resettlement in this case turns on

Brazilian law, the Government was required to set forth

evidence of the substance of that law. Id. at 491-92. Kibinda

declined to designate a country of removal and the IJ settled on

Angola as the country of removal. Nothing in this opinion

should be construed as barring removal or voluntary departure

to Brazil, should that become a possibility because Kibinda’s

wife is Brazilian.

17

statutorily eligible for asylum. As Kibinda has failed to 11

establish a well-founded fear of persecution, he has failed to

meet the higher standard of demonstrating a “clear probability”

of persecution and thus is also not eligible for withholding of

removal. Balazoski v. INS, 932 F.2d 638, 640 (3d Cir. 1991).

B. The Convention Against Torture

Kibinda’s final claim is that he is eligible for withholding

of removal under the CAT. An applicant seeking relief under

the CAT must establish “that it is more likely than not that he or

she would be tortured if removed to the proposed country of

removal.” Sevoian v. Ashcroft, 290 F.3d 166, 174-75 (3d Cir.

2002) (quoting 8 C.F.R. § 208.16(c)(2)). Although the standard
18

for establishing a CAT claim is more stringent than the asylum

standard, it does not follow that a failure to meet the asylum

standard necessarily precludes a CAT claim. See Ghebrehiwot

v. Att’y Gen., 467 F.3d 344, 358 (3d Cir. 2006) (finding IJ

committed legal error in holding that failure to meet the

evidentiary burden for asylum precluded relief under the CAT);

Amanfi v. Ashcroft, 328 F.3d 719, 725 (3d Cir. 2003) (“A

petition for protection under the Convention Against Torture

differs significantly from petitions for asylum or withholding of

removal because the alien need not demonstrate that he will be

tortured on account of a particular belief or immutable

characteristic.”).

However, the IJin this case did not conclude that Kibinda

was ineligible for CAT relief simply because he had failed to

meet his asylum burden of proof. Rather, the IJ stated that

“[t]aking this [asylum] analysis into account, but also reviewing

all of the credible source materials in the record, the Court does

not find it more likely than not that respondent would be

tortured . . . .” In assessing the risk of torture, the IJ was

required to consider “all evidence relevant to the possibility of

future torture.” 8 C.F.R. § 208.16(c)(3) (2000). Various reports

were admitted into evidence at Kibinda’s immigration hearing,

including official country reports prepared by the U.S. State

Department, as well as reports from private organizations such

as Human Rights Watch and Amnesty International. The IJ

considered these various sources and concluded that Kibinda

was not likely to be tortured if returned to Angola. While these

sources do report some incidents of torture in Angola, the

evidentiary record as a whole does not “compel” a contrary

conclusion, Elias-Zacarias, 502 U.S. at 481 n.1, that torture will
19

more likely than not occur if Kibinda is removed to Angola.

Thus, we must uphold the IJ’s finding with respect to Kibinda’s

CAT claim.

III.

For the foregoing reasons, we conclude that substantial

evidence supports the BIA’s and IJ’s decisions to deny relief,

and we will accordingly deny the petition for review.