* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JAN 12 2005 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

AGNES MUTALE,

Petitioner,

v. JOHN ASHCROFT,

Respondent. No. 03-9573 (No. A76-908-343) (Petition for Review)

ORDER AND JUDGMENT *

Before EBEL , BALDOCK , and KELLY , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. The partie s are familiar with the facts and we will not repeat them herein.1 The formal name of the Convention Against Torture i s the United Nations

Convention Against Torture and Other Cruel, Inhumanor Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. The U nited States became a party to the Convention Against Torture through the Forei gn Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105- 277, § 2242, 112 Stat. 2681 (1998). Elzour v. Ashcroft , 378 F.3d 1143, 1150 n.8 (10th Cir. 2004) (citing Batalova v. Ashcroft , 355 F.3d 1246, 1248 n.2 (10th Cir. 2004)). -2- Petitioner seeks review of a decision of the Board of Immigration Appeals (BIA) dismissing her appeal from the denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture. 1 We exercise jurisdiction under 8 U.S.C. § 1252(a), andwe deny the petition for review. Petitioner is a native and citizen of Uganda. She overstayed her visa to remain in the United States, and requested asylum o n the basis of alleged persecution in her home country. She asserted thatshe had been married to a legal advisor for the opposition Ugandan Democratic Party, and that the government of Uganda had arrested and tortured her for political beliefs it imputed to her on the basis of her marriage. Petit ioner’s application for asylum was denied. Petitioner appealed, and was granted ahearing before an immigration judge (IJ) in January 2002. Petitioner , and Ivan Were, a member of the UDP who has been granted asylum in this country , were witnesses in that proceeding.-3-

At the hearing, petitioner suffered from what her attorney described as a “nervous condition,” and she had difficulty express ing herself in English. The IJ’s questions to petitioner were translated into h er native language of Luganda, and, when petitioner could not express her answers in English, the translator interpreted petitioner’s answers from Luganda to En glish for her. The IJ found her testimony to be contradictory and vague about d ates and events. The IJ issued an oral decision denying petitioner’s application for asylum, withholding of removal, and relief under the Conven tion Against Torture. He explained that petitioner had failed to carry both of two evidentiary burdens. R. at 68. First, petitioner had failed to carry th e evidentiary burden to establish that she had a reasonable fear of political persecu tion if returned to her home country. Because petitioner had argued that her fe ar of political persecution rested on her marriage to a politically active diss ident, the IJ held that she had to provide documentary evidence of who her husband hadbeen in Uganda and that she had been married to him. Petitioner had not ar gued that such documentary evidence was unavailable, and according to the IJ, if petitioner’s husband “really was a campaign manager or a chief legal officer fora political party, there would be plenty of evidence available to show it.” Id. Second, the IJ held that both petitioner and Ivan W ere, a fellow Ugandan, were not credible as witnesses. Id. The IJ found “numerous discrepancies”-4-

between petitioner’s written statements and her ora l testimony and found Were’s testimony not to be credible because the daughter w ho reportedly told him that her father was missing was nearly an adult, and should have known more about the circumstances surrounding her father’s disappearance. Id. at 69-70. Additionally, the Ugandan Democratic Party should have been able to find out what had happened to her father had her father been as high an official in the party as Were claimed. Id. The BIA summarily affirmed the IJ’s decision with out opinion. In her petition for review, petitioner asserts thatthe BIA erred in denying her asylum and withholding of removal because (1) the BIA committed reversible error in rejecting evidence of petitioner’s marriag e and her husband’s political activities because the evidence that petitioner sub mitted should have been enough to establish past persecution for purposes of asylu m, withholding of removal, or protection under the Convention Against Torture; (2 ) the BIA erred in finding that petitioner was not a credible witness; (3) the BIA erred in relying on petitioner’s failure to leave her home country immediately to support its finding that she was not credible; and (4) the BIA erred in failing to c onsider Were’s testimony as relevant to petitioner’s asylum claim. When the BIA summarily affirms an IJ, we review the IJ’s decision as if it were the BIA’s. Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003). We do not weigh the evidence, nor do we evaluate th e credibility of witnesses.-5-

Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004) (citing Woldemeskel v. INS , 257 F.3d 1185, 1189 (10th Cir. 2001)). In addition , the BIA’s factual findings “are conclusive unless the record demonstrates thatany reasonable adjudicator would be compelled to conclude to the contrary.” Tsevegmid , 336 F.3d at 1235 (quotation omitted). Although an IJ must give “spe cific, cogent reasons” for his decisions on credibility, Sviridov v. Ashcroft , 358 F.3d 722, 727 (10th Cir. 2004), a finding that a witness is not credible is a finding of fact. Elzour v. Ashcroft , 378 F.3d 1143, 1150 (10th Cir. 2004).

Asylum Two steps are required for a grant of asylum: (1) the alien must establish that he or she is a refugee under 8 U.S.C. § 1101(a )(42), and (2) the Attorney General will then exercise his discretion to grant or deny asylum. Rezai v. INS , 62 F.3d 1286, 1289 (10th Cir. 1995). “To establishrefugee status, the alien must prove either past ‘persecution or a well-founded fe ar of persecution on account of race, religion, nationality, membership in a partic ular social group, or political opinion.’” Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991) (quoting 8 U.S .C. § 1101(a)(42)). The Board’s factual determination whether the alien is a refugee is reviewed for substantial evidence. Nguyen v. INS , 991 F.2d 621, 625 (10th Cir. 1993). The Attorney General’s discretionary decisi on whether to grant asylum is-6-

conclusive “unless manifestly contrary to law and an abuse of discretion.” 8 U.S.C. § 1252(b)(4)(D). Questions of law are reviewed de novo

. Kapcia , 944 F.2d at 705. “The alien bears the burden of pr oof in the deportation proceedings.” Id. at 707. We are concerned here with the first step , whether petitioner has established her status as a refugee, as defined by § 1101(a)(42). We must uphold the Board’s determination that petit ioner is not eligible for asylum if the record considered as a whole contains reasonable, substantial, and probative evidence to support that determination. INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992). Reversal is appropriate only wher e the evidence would compel a reasonable fact finder “to conclude that the requis ite fear of persecution existed.” Id. at 481 & n.1. In this case, petitioner has not met her burden to establish that her fear of persecution is well-founded. The IJ found as a matter of fact that neither petitioner nor Were were credible witnesses, and ne ither witness supported his or her testimony with documentation or objective piece s of evidence. Here the IJ gave “specific, cogent reasons” for his determination of credibility. Sviridov , 358 F.3d at 727. Because we cannot weigh evidence, and we cannot eva luate the credibility of witnesses, Yuk , 355 F.3d at 1233, we must conclude that the BIA’s factual findings on the credibility of these witnesses “are conclusive.” Our review of the-7-

record does not compel us to hold otherwise. Tsevegmid , 336 F.3d at 1235. The remainder of petitioner’s arguments do not address this determinative issue. Petitioner bore the burden of proof in deportation proceedings, and she failed to establish a credible well-founded fear of persecution. Kapcia , 944 F.2d at 707.

Withholding of deportation Title 8 U.S.C. § 1253(h) provides that an alien sha ll not be deported if his or her life or freedom would be threatened due to h is or her “race, religion, nationality, membership in a particular social group, or political opinion.” In this case, because petitioner did not establish the lowe r standard for asylum–a well-founded fear of persecution–she also failed to establish the higher standard for withholding deportation–a clear probability of persecution. See Rezai , 62 F.3d at 1289. We thus affirm the Board’s decision to de ny withholding of deportation.

Convention Against Torture The Convention Against Torture (CAT) provides anoth er basis to withhold removal. Pursuant to the CAT, an alien is entitled not to be removed to a country if he or she can show that it is more likely than n ot that he or she would be tortured if removed to that country. 8 C.F.R. § 20 8.16(c)(2), (4). A petitioner must show that the persecution at issue would be so severe as to rise to the level-8-

of torture, but he or she need not show that the to rture would be on account of a protected classification. Elzour , 378 F.3d at 1150. Because petitioner in this cas e has not credibly shown that she has established a w ell-founded fear of persecution if removed, she cannot meet the CAT’s higher standard that she would be subject
to torture.

Conclusion Because we accept the agency’s findings regarding t he witnesses’ credibility to be conclusive, 8 U.S.C. § 1252(b)(4) (B), we DENY the petition for review.

Entered for the Court

Paul J. Kelly, Jr. Circuit Judge