[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 13-10409

________________________

Agency No. A200-278-578

BIUMA CLAUDINE MALU,

a.k.a. Bima Claudien Malu,

 Petitioner,

versus

U.S. ATTORNEY GENERAL,

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

_______________________

(August 19, 2014)

Before TJOFLAT and PRYOR, Circuit Judges, and SCOLA,

∗ District Judge.

PRYOR, Circuit Judge: 

 

∗ Honorable Robert N. Scola, Jr., United States District Judge for the Southern District of 

Florida, sitting by designation.

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This petition for review presents an issue about exhaustion of remedies that 

has divided our sister circuits: whether an alien must contest her status as an 

aggravated felon in an expedited removal proceeding before raising that argument 

before a federal court of appeals. Biuma Malu argues that she should not have been 

subject to expedited removal proceedings because she did not commit an 

“aggravated felony,” 8 U.S.C. § 1101(a)(43). Malu also contests the denial of her 

application for withholding of removal and protection under the Convention 

Against Torture. She contends that the Board of Immigration Appeals erred when 

it denied her application. That application alleged that, if she were to return to the 

Democratic Republic of Congo, she would suffer persecution and torture as a result 

of her relationship with her uncle and on account of her sexual orientation. 

Because we conclude that Malu failed to exhaust her argument that she did not 

commit an aggravated felony, id. § 1252(d)(1), and that the Board committed no

reversible errors, we deny her petition for review.

I. BACKGROUND

Malu was born in Kinshasa, Democratic Republic of Congo, and lived there 

for more than two decades before she fled to the United States in November 2000. 

When Malu was 11 years old, her parents sold her to her uncle in exchange for a 

bride price. According to Malu, her uncle, a high-ranking officer in the Congolese 

military, raped her, impregnated her, put her head in the toilet, urinated on her, 

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burned her with cigarettes, stabbed her, and pierced her with a screwdriver. By age 

12, Malu had aborted three pregnancies. When she became pregnant a fourth time

at age 12, her doctor instructed her to keep the baby because she would die if she 

had another abortion. According to Malu, she miscarried the fourth child during a 

visit to her parents’ home when a group of rebel soldiers invaded the home, killed 

two of her brothers and two of her sisters, beat her father, and raped Malu and her 

mother. 

Malu escaped the Congo in 2000 when her uncle left her with her parents so 

that Malu could be circumcised, a procedure also commonly known as female 

genital mutilation. From the Congo, Malu traveled by boat and by car to Gabon, 

then Cameroon, and finally to Nigeria. From Nigeria, she traveled by ship to 

Canada and entered the country using a Nigerian passport. She crossed into the 

United States in the trunk of the car of her smuggler’s cousin. She settled in 

Georgia, near Atlanta. 

When Malu first came to the United States, she married a man, but the two 

later separated. Malu now identifies as a lesbian and dresses as a man. In 2005, she 

met her partner, April Milliner, at church. They lived together with Milliner’s two 

twin daughters. Together, they managed a car wash. 

While in the United States, Malu committed two crimes in violation of 

Georgia law. In 2009, the state charged her with cruelty to children after arguing 

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with Milliner in front of the twin girls. And in 2011, the state charged her with 

simple battery. The Department of Homeland Security classified her conviction for 

simple battery as an aggravated felony, id. § 1101(a)(43)(F), and initiated 

expedited removal proceedings, id. § 1228.

The Department served Malu with a notice of intent to issue a final 

administrative removal order, which served as the charging document for her 

removal, 8 C.F.R. § 1238.1(b)(2). The notice of intent allowed Malu to contest her 

removability. The notice stated that Malu “must respond to the . . . charges in 

writing . . . within 10 calendar days” and that her response could “rebut the 

charges,” “request an opportunity to review the government’s evidence,” “admit 

deportability,” “designate the country to which [she chose] to be removed,” and 

seek withholding of removal or protection under the Convention Against Torture. 

Malu responded to the notice of intent by checking a box requesting withholding of 

removal because she feared persecution, but she failed to contest the classification 

of her crime as an aggravated felony. The Department issued the removal order on 

September 28, 2011. 

After issuing the removal order, an immigration officer conducted a 

reasonable fear interview and concluded that Malu expressed reasonable fear of 

persecution and torture if she were to return to the Congo. The officer concluded 

that Malu suffered past persecution and had a reasonable fear of future persecution 

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on account of her membership in a particular social group: Congolese women 

viewed as property by virtue of their position as wives. The officer further 

concluded that Malu established a reasonable fear of torture because she is a 

lesbian. The officer referred Malu’s case to an immigration judge to decide 

whether Malu was entitled to withholding of removal or protection under the 

Convention Against Torture. 

Malu appeared pro se before the immigration judge, who denied her 

application. Both she and Milliner testified. She also submitted evidence about 

Congolese society and government, in addition to letters authored by Malu and her 

friends explaining Malu’s past and her role in her Atlanta community. The 

immigration judge discredited Malu’s testimony that she was a Congolese national. 

The immigration judge also ruled that, even if she could prove her nationality, she 

failed to corroborate her allegation of past persecution with a reasonably obtainable

medical evaluation of her scars, evidence establishing the identity of her uncle, and 

evidence substantiating her family’s horrific encounter with the rebel soldiers. The 

immigration judge also found that Malu would not suffer future persecution in the 

Congo on account of her sexual orientation. 

Malu appealed to the Board of Immigration Appeals, which dismissed her 

appeal. The Board agreed with the immigration judge that Malu failed to 

corroborate her allegations of past persecution and could not establish future 

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persecution. But the Board refused to adopt two conclusions of the immigration 

judge: the Board did not adopt the immigration judge’s rejection of Malu’s 

purported nationality and did not adopt the immigration judge’s conclusion that the 

Department rebutted a presumption that Malu would suffer future persecution. The 

Board explained that these determinations by the immigration judge, even if in 

error, were not necessary to the disposition of Malu’s case.

II. STANDARD OF REVIEW

We review issues of jurisdiction and issues of law de novo. AmayaArtunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006); De Sandoval 

v. U.S. Att’y Gen., 440 F.3d 1276, 1278 (11th Cir. 2006). We review only the 

decision of the Board of Immigration Appeals, except to the extent that the Board 

“expressly adopts the [immigration judge’s] opinion.” Al Najjar v. Ashcroft, 257 

F.3d 1262, 1284 (11th Cir. 2001). 

III. DISCUSSION

Malu presents three arguments to our Court. She first argues that the 

Department incorrectly classified her conviction for battery as an aggravated 

felony. She then asks us to overturn certain factual findings by the immigration 

judge and the decision by the Board that she would not be persecuted or tortured if 

she were to return to the Congo. Finally, she contends that the Board committed 

errors of law when it denied her application. 

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We divide our discussion in five parts. First, we conclude that we are 

powerless to consider Malu’s argument that her conviction for simple battery does 

not qualify as an aggravated felony because she failed to contest the only ground 

for her removal before the Department. Second, we explain that we will not review 

alleged errors by the immigration judge that the Board did not expressly adopt. 

Third, we explain that the REAL ID Act bars us from considering issues of fact 

raised by Malu, a criminal alien. Fourth, we conclude that the Board committed no

legal error when it rejected Malu’s application for withholding of removal. And 

fifth, we conclude that the Board committed no legal error when it rejected Malu’s 

application for protection under the Convention Against Torture.

A. We Lack Jurisdiction to Consider Malu’s Argument that She Is Not an 

Aggravated Felon Because Malu Failed to Exhaust that Argument.

For the first time, Malu contests the basis for the expedited removal 

proceedings initiated against her. She argues that she should not have been 

subjected to expedited removal proceedings because her prior conviction for 

simple battery, Ga. Code § 16-5-23(a)(1), does not qualify as an “aggravated 

felony,” 8 U.S.C. § 1101(a)(43)(F). Malu contends that the decision of the 

Supreme Court in Johnson v. United States, 559 U.S. 133, 130 S. Ct. 1265 (2010),

abrogated our prior precedent, which classified simple battery as a violent felony. 

The Attorney General urges us not to consider this argument on the ground 

that Malu failed to exhaust it when she declined to contest the notice of intent, see 

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8 U.S.C. § 1252(d)(1), but Malu asks us to ignore her failure to exhaust for three 

reasons. First, she contends that there was no available remedy when she received 

the notice of intent because binding Circuit precedent held that her conviction for 

simple battery was an aggravated felony. Second, she contends that the law does 

not require that she exhaust specific issues in the earlier proceedings, but instead 

that she only complete each step of the administrative process. Third, she contends 

that she was not afforded reasonable administrative process because the notice of 

intent did not expressly state that she could contest the classification of simple 

battery as an aggravated felony. We discuss each of these arguments in turn. 

Malu’s assertion that binding Circuit precedent foreclosed an argument that 

her conviction was not an aggravated felony is a nonstarter. The Department issued 

the notice of intent on September 15, 2011. But the Supreme Court decided 

Johnson, the decision that Malu contends abrogated our Circuit precedent, more 

than a year earlier on March 2, 2010. Had Malu argued that her conviction was not 

an aggravated felony, an immigration judge would have not only considered 

Johnson, but also would have been bound by Johnson to the extent that decision 

conflicted with our prior precedent. 

For her second argument, Malu relies on a decision of the Supreme Court 

involving the Social Security Administration, Sims v. Apfel, 530 U.S. 103, 120 S. 

Ct. 2080 (2000). She contends that under Sims she had to exhaust only the 

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administrative remedies available to her. In Sims, the Supreme Court distinguished 

a requirement that a petitioner ask an administrative agency for relief before filing 

her action in a federal court—exhaustion of remedies—from a requirement that a 

petitioner raise specific issues before the agency before raising those issues in 

federal court—exhaustion of issues. Id. at 107, 120 S. Ct. at 2083. The Court 

stressed that whether a petitioner must exhaust remedies versus particular issues is 

agency-specific. Id. at 107–08, 120 S. Ct. at 2084 (noting that the requirements are 

“largely creatures of statute” and that some agency regulations require issue 

exhaustion). The Court also noted that it has sometimes imposed a requirement that 

petitioners exhaust all arguments available to them at each stage of the 

administrative proceeding and that the rationale for such a requirement “is at its 

greatest” in adversarial administrative proceedings. Id. at 108–10, 120 S. Ct. at 

2084–85.

Sims does not help Malu. The statute that governs this petition, the REAL ID 

Act, required Malu to “exhaust[] all administrative remedies available to [her] as of 

right.” 8 U.S.C. § 1252(d)(1). But Malu failed to do so because she failed to 

contest the only ground for her expedited removal: whether her prior conviction for 

simple battery was an aggravated felony. At her adversarial proceeding, Malu 

conceded her removability and applied for withholding of removal. We are not 

now at liberty to reconsider the underlying basis for her expedited removal. Id.

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Malu’s third argument—whether she was afforded reasonable administrative 

process to contest the grounds for removal—presents a more difficult question, and 

one on which the federal courts of appeals have split. Malu argues that the notice 

of intent did not clearly explain that she was permitted to contest the classification 

of her conviction as an aggravated felony. She relies on a decision of the Fifth 

Circuit, Valdiviez-Hernandez v. Holder, 739 F.3d 184 (5th Cir. 2013), which held 

that the administrative remedies available to an alien after the Department serves 

her with a notice of intent are remedies that resolve only factual deficiencies, not 

legal issues. Id. at 187 (“[T]he relevant regulations indicate that the response 

process is geared toward resolving only issues of fact.”). Malu also relies on a 

decision of the Seventh Circuit, Eke v. Mukasey, 512 F.3d 372 (7th Cir. 2008), 

which stated that the court of appeals could consider whether the Department 

correctly classified the immigrant as an aggravated felon. Id. at 378. But Eke

stands, at least, in tension with another decision of the Seventh Circuit, FonsecaSanchez v. Gonzales, 484 F.3d 439 (7th Cir. 2007), in which the court considered 

the exhaustion requirement of the REAL ID Act, 8 U.S.C. § 1252(d)(1), and 

decided that it did not have jurisdiction to review an alien’s objection to an order of 

removal because she failed to respond to the notice of intent. Id. at 443–44. The 

Eighth Circuit too has ruled that the courts of appeals lack jurisdiction to consider 

an issue that an immigrant raises for the first time on appeal instead of in his 

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response to the notice of intent. Escoto-Castillo v. Napolitano, 658 F.3d 864, 866 

(8th Cir. 2011). 

We reject the decisions of the Seventh Circuit in Eke and the Fifth Circuit in 

Valdiviez-Hernandez. In Eke, the court failed to mention, let alone cite, the 

exhaustion provision, and the government failed to raise the issue in its brief. 512 

F.3d at 378. The Seventh Circuit avoided the jurisdictional issue on the ground that 

the parties had briefed the merits. Id. And the Fifth Circuit gave short shrift to 

other regulations governing removal. The Fifth Circuit decided it had jurisdiction 

to review an unexhausted issue of law based on an agency regulation, 8 C.F.R. 

§ 238.1(d)(2)(i), (ii), which provides that removal decisions shall be subject to 

further review if an alien’s response to the notice of intent raises a genuine issue of 

material fact. Valdiviez-Hernandez, 739 F.3d at 187. But the Fifth Circuit failed to 

take notice of the next provision, id. § 238.1(d)(2)(iii), which states that an officer 

may transfer removal proceedings to an immigration judge if the alien objects to 

the notice of removal on the ground that she is “not amenable” to the expedited 

removal proceedings. Whether an alien is amenable to expedited removal 

proceedings could involve either an issue of law or fact. Moreover, as the Attorney 

General highlights, the regulations make clear that the charges in the notice of 

intent include both “allegations of fact and conclusions of law” that the alien may 

rebut. Id. § 238.1(b)(2)(i). In this expedited proceeding, it would be nonsensical to 

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limit the alien’s rebuttal to allegations of fact, but save for later any rebuttal to 

conclusions of law. Instead, an alien must exhaust all administrative remedies by 

rebutting the charges—including the conclusion of law that she is an aggravated 

felon—before the Department. 

We agree with the Seventh Circuit in Fonseca-Sanchez and the Eighth 

Circuit in Escoto-Castillo and conclude that Malu could have but failed to exhaust 

the argument that she was not an aggravated felon. The REAL ID Act provides that 

“[a] court may review a final order of removal only if . . . the alien has exhausted 

all administrative remedies available to the alien as of right.” 8 U.S.C. § 1252(d)

(emphasis added). The notice of intent charged that Malu was deportable because 

she was convicted of an aggravated felony. And in the notice of intent, the 

Department afforded Malu an opportunity to respond to that “charge” within 10 

days of her receipt of the notice of intent. She also could have submitted 

documents rebutting the decision of the Department to remove her, but she failed 

to do so. As a result, Malu failed to “exhaust[] all administrative remedies” 

available to her. Id.

B. We Will Not Review Findings by the Immigration Judge that the 

Board Did Not Adopt. 

Malu argues that the immigration judge erred when he found that she was 

not a native of the Congo, but we decline to revisit that factual finding because the 

Board expressly declined to adopt it. We review only the decision of the Board, 

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except when the Board expressly adopts the reasoning of the immigration judge. Al

Najjar, 257 F.3d at 1284. The Board made clear in its decision that it would “not 

address [Malu’s] argument that the Immigration Judge erred by finding that [she] 

did not sufficiently demonstrate that she is a native and citizen of the DRC.” It 

doubted that finding by “not[ing] that on the Notice of Intent to Issue a Final 

Administrative Removal Order, the [Department] charged that [Malu] was a native 

and citizen of the DRC.” Any finding by the immigration judge about Malu’s 

nationality is not a ground for reversal.

C. We Lack Jurisdiction To Consider Questions of Fact Because 

Malu Is a Criminal Alien.

The REAL ID Act bars courts of appeals from reviewing final orders of 

removal against criminal aliens, 8 U.S.C. § 1252(a)(2)(C), but excepts

“constitutional claims or questions of law” from this jurisdictional bar, id.

§ 1252(a)(2)(D). See Perez-Guerrero v. U.S. Att’y Gen., 717 F.3d 1224, 1231–32

(11th Cir. 2013). We lack jurisdiction, for example, to review factual findings that 

an alien is unlikely to endure persecution. Singh v. U.S. Att’y Gen., 561 F.3d 1275, 

1280–81 (11th Cir. 2009). We also lack jurisdiction to reweigh the evidence that 

the agency considered. Cole v. U.S. Att’y Gen., 712 F.3d 517, 534 (11th Cir. 2013). 

But we retain jurisdiction to review a petition that challenges “the application of an 

undisputed fact pattern to a legal standard,” which is a legal question. Jean-Pierre 

v. U.S. Att’y Gen., 500 F.3d 1315, 1322 (11th Cir. 2007). For example, whether an 

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undisputed set of facts amounts to “torture” or whether the Board failed to give 

reasoned consideration of an alien’s claim are both reviewable questions of law. Id.

at 1322, 1326. 

Because Malu committed an aggravated felony, id. § 1227(a)(2)(A)(iii), we 

lack jurisdiction to review the errors of fact that she alleges in her brief. Id.

§ 1252(a)(2)(C). Malu contends that this jurisdictional bar does not apply to her 

request for protection under the Convention Against Torture, but our Circuit 

precedent says otherwise. See Perez-Guerrero, 717 F.3d at 1231; Cole, 712 F.3d at

532–33. Malu asks us to review the factual findings that she failed to establish a 

clear probability of future harm from her uncle or on account of her sexuality, but 

we cannot. Singh, 561 F.3d at 1280–81 (“[W]e may not review the administrative 

fact findings of the [immigration judge] or the [Board] as to the sufficiency of the 

alien’s evidence and the likelihood that the alien will be tortured if returned to the 

country in question.”). She also asks us to review the finding that corroborative 

evidence was reasonably obtainable, but that too is a question of fact. See 8 U.S.C. 

§ 1252(b)(4) (“No court shall reverse a determination made by a trier of fact with 

respect to the availability of corroborating evidence . . . unless the court finds . . . 

that a reasonable trier of fact is compelled to conclude that such evidence is 

unavailable.” (emphasis added)). The only relief available to Malu, a criminal 

alien, is relief predicated on errors of law, not errors of fact. 

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D. The Board Committed No Reversible Error When It Denied Malu’s Application 

for Withholding of Removal.

Malu argues that the Board erred as a matter of law when it denied her 

application for withholding of removal. An alien who seeks withholding of 

removal must establish that her life or freedom would be threatened because of her 

race, religion, nationality, membership in a particular social group, or political 

opinion if she were to return to her country. 8 U.S.C. § 1231(b)(3)(A); see Tang v. 

U.S. Att’y Gen., 578 F.3d 1270, 1277 (11th Cir. 2009). The alien must establish 

that she will “more-likely-than-not” face persecution upon her return. Mendoza v. 

U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003). 

Malu argues that her membership in two social groups will subject her to 

persecution if she returned to the Congo. First, she contends that her membership 

in the group of Congolese wives, who are viewed as property because of their 

domestic relationships, led to torture by her uncle in the past and would lead to 

torture by her uncle in the future if she were to return to the Congo. Second, she 

contends that she would be subject to future persecution if she were to return to the 

Congo because of her sexual orientation. We review each of these arguments in 

turn. 

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1. Whether Congolese Wives Viewed as Property on Account 

of Their Domestic Relationships Are a Particular Social Group Is Not Justiciable.

The Board denied Malu’s application, in part, because Congolese wives 

treated as property because of their domestic relationships are not a particular 

social group. It concluded that Congolese wives viewed as property are not readily 

identifiable in Congolese society and, as a result, do not constitute a particular 

social group. But the Board found, in the alternative, that even if these Congolese 

wives constitute a particular social group, Malu failed to prove that her uncle was 

still alive or that he would know she reentered the Congo. 

Although ordinarily we would have jurisdiction to review whether 

Congolese wives viewed as property constitute a particular social group because 

that is a question of law, 8 U.S.C. § 1252(a)(2)(D); Castillo-Arias v. U.S. Att’y 

Gen., 446 F.3d 1190, 1195 (11th Cir. 2006), we cannot do so here lest we provide 

an advisory opinion. Cf. Herb v. Pitcairn, 324 U.S. 117, 126, 65 S. Ct. 459, 463 

(1945) (“[O]ur power is to correct wrong judgments, not to revise opinions. We are 

not permitted to render an advisory opinion, and if the same judgment would be 

rendered by the state court after we corrected its views of federal laws, our review 

could amount to nothing more than an advisory opinion.”). Even if we were to 

assume for the sake of argument that these Congolese wives share an immutable 

characteristic and are socially visible, Castillo-Arias, 446 F.3d at 1196–98, the 

Board decided, as a matter of fact, that Malu failed to prove that she more likely 

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than not would be persecuted in the future on account of her membership in that 

group. We lack jurisdiction to review that factual finding. See 8 U.S.C. 

§ 1252(a)(2)(C); see also Singh, 561 F.3d at 1280–81. 

Relatedly, Malu argues that the immigration judge erred when he required 

her to establish that the circumstances in the Congo had not changed, but that 

mistake is not reviewable. Malu is correct that it would not be her burden to 

establish that the circumstances in the Congo had not changed since she left if she 

established that she had suffered past persecution. A presumption of future 

persecution attaches once an alien establishes that she has suffered past 

persecution. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1351–52 (11th 

Cir. 2009). The Department then bears the burden of rebutting that presumption 

and must establish, by a preponderance of the evidence, that the country conditions 

have changed such that there is no longer a well-founded fear of persecution. See 8 

C.F.R. § 1208.13(b)(1)(i)(A)–(B). But the Board expressly refused to adopt the 

burden-shifting portion of the immigration judge’s order. The Board declined to 

address that issue because Malu failed to establish past persecution. And, because 

she failed to establish past persecution, Malu was not entitled to a presumption of 

future persecution. Because the Board did not expressly adopt this portion of the 

immigration judge’s order, we do not review it. See Al Najjar, 257 F.3d at 1284. 

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2. The Board Committed No Legal Error in Its Decision about the Treatment of 

Homosexuals in the Congo.

Malu contends that the Board misapplied the legal standard of “persecution,” 

selectively viewed undisputed evidence about the treatment of homosexuals in the 

Congo, and failed to give reasoned consideration to her claim that she would suffer 

persecution on account of her sexual orientation. We lack jurisdiction to review the 

factual finding that Malu would not suffer future persecution in the Congo on 

account of her sexual orientation, which includes arguments about the weight of 

the evidence. But we retain jurisdiction to review “the application of an undisputed 

fact pattern to a legal standard” and whether the Board failed to give reasoned 

consideration to Malu’s claims. Jean-Pierre, 500 F.3d at 1322, 1326. 

The legal standard for persecution is settled. “[P]ersecution is an extreme 

concept, requiring more than a few isolated incidents of verbal harassment or 

intimidation.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) 

(internal quotation marks omitted). An alien must establish that the government 

would be her persecutor or that the government would be unwilling or unable to 

protect her from persecution by a private actor. Lopez v. U.S. Att’y Gen., 504 F.3d 

1341, 1345 (11th Cir. 2007). 

Neither the immigration judge nor the Board selectively reviewed the 

incidents of harassment or intimidation of homosexuals in the Congo. Instead, the 

immigration judge acknowledged that Malu submitted evidence about the 

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treatment of homosexuals in the Congo. The immigration judge highlighted that 

homosexual activity is not prohibited by law, but that there are no antidiscrimination laws to protect homosexuals. The immigration judge found that 

“there is nothing in the record to show that the absence of such laws incites DRC 

citizens to harm homosexual individuals.” The immigration judge acknowledged 

that the evidence from the Immigration and Refugee Board of Canada stated that 

homosexual relationships could be criminalized under the public decency provision 

of the penal code, but that the same evidence stated that such prosecutions are 

“very rare.” The immigration judge found no evidence that “mention[ed] . . . 

specific instances of prosecution.” Moreover, no evidence established that state 

police perpetrated or condoned violence against lesbians. The immigration judge

correctly stated that, as a matter of law, evidence of harassment by state security 

forces alone cannot amount to persecution. See Sepulveda, 401 F.3d at 1231.

The immigration judge also considered evidence about private citizens’ 

harassment and violence toward homosexuals, but found that the evidence did not 

amount to state-sponsored persecution. The immigration judge highlighted, as an 

example, that authorities prevented a mob lynching of a homosexual woman. The 

immigration judge did not consider this mob lynching in isolation, but instead used 

it as an “example” that “the record shows that the government of the DRC is not, in 

fact, unable or unwilling to control private actors who mistreat members of 

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[Malu’s] asserted social group.” Likewise, when the Board adopted the findings of 

the immigration judge, the Board found that prosecution of homosexual 

relationships is “very rare” and that homosexual activity is not prohibited by law. 

The Board did not err as a matter of law when it found that Malu failed to 

establish that she more likely than not would be persecuted. Malu has not directed 

us to any evidence in the record that would constitute persecution that the Board 

failed to consider. And the combined evidence about the treatment of homosexuals 

in the Congo does not compel a finding of “persecution,” which is “extreme” and 

requires more than isolated incidents of harassment or intimidation. Id.

We reject Malu’s contention that the agency failed to give reasoned 

consideration of her evidence of future persecution on account of her sexual 

orientation. Neither the immigration judge nor the Board had to address each piece 

of evidence presented by Malu. Tan v. U.S. Att’y Gen., 446 F.3d 1369, 1374 (11th 

Cir. 2006). Both the immigration judge and the Board considered the evidence 

Malu presented and announced their decisions in terms sufficient to enable our 

Court to perceive that they “heard and thought and not merely reacted.” Id.

(internal quotation marks omitted). The Board fully considered Malu’s claims, and

Malu fails to point to any additional evidence that the Board should have 

considered. 

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The related argument of the amici curiae, the National Center for Lesbian 

Rights and other groups, also fails. The amici contend that the Board failed to give 

reasoned consideration to the fact that Malu is gender nonconforming. But Malu 

asked neither the immigration judge nor the Board to consider whether gender 

nonconforming adults would be persecuted in the Congo. Instead, Malu identified 

herself as part of the social group of Congolese lesbians. Both the immigration 

judge and the Board fully considered Malu’s evidence about that social group and 

rejected Malu’s argument that she more likely than not would be subject to 

persecution. 

E. The Board Did Not Err as a Matter of Law When It Denied Malu Protection 

Under the Convention Against Torture.

Malu asks for protection under the Convention Against Torture based on the 

same facts that predicated her application for withholding of removal. To qualify 

for protection under the Convention Against Torture, an alien must establish that 

she “more likely than not” will be tortured “at the instigation of or with the consent 

or acquiescence of” government authorities if removed to her home country. 

Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir. 2004); 8 C.F.R. 

§§ 208.16(c)(2), 208.18(a)(1). Malu argues that the Board accurately recited that

legal standard but offered no analysis. 

Case: 13-10409 Date Filed: 08/19/2014 Page: 21 of 22 
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Malu’s argument fails to appreciate that, before deciding whether she was 

entitled to protection under the Convention Against Torture, the Board 

exhaustively discussed her application for withholding of removal based upon the 

same set of facts. The Board “need not address specifically each claim the 

petitioner made or each piece of evidence the petitioner presented.” Carrizo v. U.S. 

Att’y Gen., 652 F.3d 1326, 1332 (11th Cir. 2011) (internal quotation mark

omitted). After the Board’s discussion of Malu’s application for withholding of 

removal, the Board adequately considered Malu’s request for protection under the 

Convention Against Torture and announced its decision in terms sufficient to 

enable review. Id. The immigration judge too acknowledged that Malu alleged that 

she had suffered physical abuse at the hands of her uncle, but concluded that Malu 

failed to establish that her uncle committed these acts in his official capacity as a 

government official for the Congo or that he had any interest in torturing her in the 

future. And having already concluded that the Congolese government would not 

acquiesce to persecution from private actors, the immigration judge also concluded 

that the Congo would not consent to the torture of Malu at the hands of private 

actors based on her sexual orientation. 

IV. CONCLUSION

We DENY Malu’s petition for review. 

Case: 13-10409 Date Filed: 08/19/2014 Page: 22 of 22