William Johnathan Kimumwe v. Alberto Gonzales, 1 Attorney General of the United States

431 F.3d 319, 2005 WL 3370235
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 13, 2005
Docket04-2716
StatusPublished
Cited by27 cases

This text of 431 F.3d 319 (William Johnathan Kimumwe v. Alberto Gonzales, 1 Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
William Johnathan Kimumwe v. Alberto Gonzales, 1 Attorney General of the United States, 431 F.3d 319, 2005 WL 3370235 (8th Cir. 2005).

Opinions

COLLOTON, Circuit Judge.

William Kimumwe petitions for review of a decision of an Immigration Judge denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We conclude that the I J’s determination was within the range of decisions available to a reasonable adjudicator, and we therefore deny the petition for review.

I.

Kimumwe is a native of Zimbabwe who fled his country in March 2002. He alleges that he is a homosexual, and that he left Zimbabwe on account of the government’s intolerance of homosexuality. Kimumwe contends that he suffered past persecution by the Zimbabwean government, and that he has a well-founded fear that he would be persecuted if he were returned.

In support of his claim regarding past persecution, Kimumwe described several incidents from his youth in Zimbabwe. He explained that while attending secondary school in 1995 at age 12, he had sexual relations with another boy his age. Ki-mumwe admitted that he “lured” the other student into participating in sexual activity, and acknowledged that the other student may not have been gay. The school’s policy prohibited sexual activity of any [321]*321kind, and Kimumwe was expelled from school as a result of the incident.

In 1998, while attending the College of Bulawayo, Kimumwe invited a fellow student to his room for drinks, during which time the two men became drunk and engaged in sexual activity. The second student reported the incident to college authorities, who in turn reported it to police, and Kimumwe was arrested. Police detained Kimumwe for two months, but did not charge him with a criminal offense. Kimumwe testified that he was accused of getting the other boy drunk, and then having sex with him, although Kimumwe also stated that a jailer later told him that he was detained because he was gay. No physical abuse occurred in the jail.

Kimumwe was released from jail when the head of the orphanage where he was raised bribed prison officials. Police gave Kimumwe an unofficial document which stated that charges against him had been dismissed, and he testified to no further problems with authorities after his release. President Kobert Mugabe of Zimbabwe declared homosexuality illegal in 1998, and in December 1998, after Mugabe made further anti-homosexual pronouncements, Kimumwe left Zimbabwe for Kenya. Ki-mumwe later left Kenya for the United States with the assistance of the Gay & Lesbians of Zimbabwe organization.

Kimumwe entered the United States in 2002, and eventually applied for asylum, withholding of removal, and protection under the CAT. In rejecting his claims, the IJ reasoned that homosexual orientation may qualify as a “particular social group” for purposes of determining whether an alien is a “refugee,” see 8 U.S.C. § 1101(a)(42); Matter of Toboso-Alfonso, 20 I. & N. Dec. 819, 822 (B.I.A.1990), but concluded that Kimumwe’s problems with authorities in Zimbabwe “were not based simply on his sexual orientation, but instead resulted [from] his engaging in prohibited sexual conduct.” The IJ recognized that the President of Zimbabwe is not tolerant of homosexuals and has expressed disdain for them, but the IJ found these official pronouncements — without any accompanying evidence of persecution based solely on homosexual status — insufficient to establish a well-founded fear of future persecution. The IJ also stated that Kimumwe had presented no objective evidence to confirm his homosexuality. Having found insufficient evidence on the asylum claim, the IJ concluded that Ki-mumwe also failed to meet the more stringent requirements for withholding of removal and protection under the CAT. The BIA affirmed without opinion.

II.

Kimumwe’s first claim is that the IJ erred in denying his application for asylum. The Attorney General has discretion to grant asylum to an alien who is unwilling to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); see 8 U.S.C. § 1158(b). Generally speaking, “[persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of a protected characteristic.” Salkeld v. Gonzales, 420 F.3d 804, 808-09 (8th Cir.2005) (internal quotations omitted). We review the BIA’s determinations under the “substantial evidence” standard, which, in this context, means that we uphold the agency’s decision unless any reasonable fact-finder would be compelled to conclude that Kimumwe demonstrated the requisite fear of persecution. See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zaearias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Menen-[322]*322dez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004). Because the BIA affirmed the IJ’s decision without opinion, we treat the IJ’s conclusions as those of the agency. 8 C.F.R. § 1003.1(e)(4); see Dominguez v. Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir. 2003).

Kimumwe argues that he satisfied his burden of showing a well-founded fear of future persecution, based largely on past persecution in Zimbabwe.' See 8 C.F.R. § 208.13(b)(1). He contends that he is a homosexual, and that his expulsion from secondary school in 1995 and his arrest and detention in 1998 while attending the College of Bulawayo are evidence of past persecution based on his membership in a particular social group. The IJ concluded, however, that the actions of Zimbabwean authorities in these instances were not based on Kimumwe’s sexual orientation, but rather on Kimumwe’s involvement in prohibited sexual conduct.

As to the secondary school, there was evidence in the record that Kimumwe, at age 12, “lured” a student into sexual activity, and was expelled from the school on that basis. Kimumwe testified that it was a violation of school policy for students to have sex with each other, that he would have been expelled for having sex with either a boy or a girl because “it was illegal to have sex,” and that he admitted at the time to luring another boy, who was not gay, into having sexual intercourse. (R. 153-54). Expulsion of a boy from school under these circumstances does not support, much less compel, a finding of persecution on the basis of homosexual status.

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431 F.3d 319, 2005 WL 3370235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/william-johnathan-kimumwe-v-alberto-gonzales-1-attorney-general-of-the-ca8-2005.