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[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. Case: 13-10409 Date Filed: 08/19/2014 Page: 2 of 22
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. Amaya-
Artunduaga 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 7 Case: 13-10409 Date Filed: 08/19/2014 Page: 8 of 22
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, Fonseca-
Sanchez 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, 12 Case: 13-10409 Date Filed: 08/19/2014 Page: 13 of 22
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 13 Case: 13-10409 Date Filed: 08/19/2014 Page: 14 of 22
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 16 Case: 13-10409 Date Filed: 08/19/2014 Page: 17 of 22
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 18 Case: 13-10409 Date Filed: 08/19/2014 Page: 19 of 22
treatment of homosexuals in the Congo. The immigration judge highlighted that
homosexual activity is not prohibited by law, but that there are no anti-
discrimination 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.
21 Case: 13-10409 Date Filed: 08/19/2014 Page: 22 of 22
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.