Pappy Katembo v. William Barr, U. S. Atty Gen

Case: 18-60770        Document: 00515597872             Page: 1      Date Filed: 10/12/2020




               United States Court of Appeals
                    for the Fifth Circuit
                                                                                 United States Court of Appeals
                                                                                          Fifth Circuit

                                                                                        FILED
                                                                                  October 12, 2020
                                    No. 18-60770                                   Lyle W. Cayce
                                consolidated with                                       Clerk
                                    No. 19-60395
                                  Summary Calendar



   Pappy Katembo Katembo,

                                                                                Petitioner,

                                            versus

   William P. Barr, U.S. Attorney General,

                                                                              Respondent.


                          Petitions for Review of Orders of the
                             Board of Immigration Appeals
                                 BIA No. A212 978 911


   Before Davis, Stewart, and Dennis, Circuit Judges.
   Per Curiam:*
           Pappy Katembo, a native and citizen of the Democratic Republic of
   Congo (DRC), petitions this court for review of the denial of his application


           *
            Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should
   not be published and is not precedent except under the limited circumstances set forth in
   5TH CIR. R. 47.5.4.
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                                    No. 18-60770
                                  c/w No. 19-60395
   for asylum, withholding of removal, and relief under the Convention Against
   Torture (CAT). He argues (1) the immigration judge (IJ) erred in holding he
   did not show that he suffered persecution on account of his actual or imputed
   political opinion; (2) the IJ and Board of Immigration Appeals (BIA) erred in
   failing to analyze whether he was persecuted on account of his membership
   in a particular social group, people who worked for National Independent
   Electoral Commission (CENI) during the 2011 election cycle; (3) the IJ
   applied the wrong legal standard and mischaracterized evidence when
   considering whether the government was unwilling or unable to control the
   persons who persecuted him; and (4) the BIA abused its discretion in denying
   his motion to reopen. We must deny the petition, for the following reasons.
          First, regardless of whether or not Katembo could show that the harm
   he suffered rose to the level of persecution, see Morales v. Sessions, 860 F.3d
   812, 816 (5th Cir. 2017), he has not shown that the evidence compels the
   finding that he suffered persecution on account of his actual or imputed
   political opinion. See Martinez Manzanares v. Barr, 925 F.3d 222, 227-28 (5th
   Cir. 2019). Katembo testified that he thought the perpetrators who attacked
   him were working for a politician who lost the election, but the IJ found (and
   the BIA agreed) that he did not adequately show that the threats and attacks
   he suffered were related or that the perpetrators were motivated by his actual
   or imputed political beliefs. See Sharma v. Holder, 729 F.3d 407, 412-13 (5th
   Cir. 2013). Rather, the IJ found Katembo was targeted because of his
   occupation as an election worker.
          Next, although Katembo testified at his hearing that he was targeted
   because of his work with CENI, the IJ determined based on his asylum
   application that he was seeking relief because of his political opinion. The
   BIA ruled that Katembo attempted to articulate a particular social group for
   the first time on appeal. Because Katembo did not expressly seek relief based
   on his membership in a particular social group before the IJ, the BIA did not



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                                   c/w No. 19-60395
   err in holding that the issue was not properly before it. See Eduard v. Ashcroft,
   379 F.3d 182, 195 n.14 (5th Cir. 2004). Therefore, Katembo did not exhaust
   his administrative remedies as to this issue. See Omari v. Holder, 562 F.3d
   314, 318-19 (5th Cir. 2009). This court does not have jurisdiction to consider
   an issue that is unexhausted. See id. at 320-21.
          Third, Katembo testified that he feared persecution by a losing
   politician and his followers, not by a government official. He had the burden
   to show that the government sanctioned his persecution or is unable or
   unwilling to control his persecutors. Gonzalez-Veliz v. Barr, 938 F.3d 219, 229
   (5th Cir. 2019); see Tamara-Gomez v. Gonzalez, 447 F.3d 343, 350-51 (5th Cir.
   2006). Katembo testified that on one occasion the police intervened, causing
   the perpetrators to flee, but that the police declined to engage further when
   they found out the victims of the attack were CENI workers. Katembo also
   testified that he did not report any other incidents to the police. The IJ found
   Katembo did not carry his burden, and he has not shown that the evidence
   compels the finding that he was persecuted or would be tortured with the
   acquiescence of government officials if removed to his home country. See
   Ramirez-Mejia v. Lynch, 794 F.3d 485, 493 (5th Cir. 2015).
          Finally, Katembo has not shown that the BIA abused its discretion in
   denying his motion to reopen. See Gomez-Palacios v. Holder, 560 F.3d 354,
   358 (5th Cir. 2009). The BIA was not required to accept all of his assertions
   as true. See INS v. Abudu, 485 U.S. 94, 109-10 (1988). It did not err in finding
   that the 2017 country report was largely cumulative evidence as the 2016 and
   2017 reports both stated rebel and militia groups (RMGs) killed and abducted
   numerous persons for various reasons. Although the 2017 report stated
   several CENI officials had been killed by an RMG, it did not state that
   politicians who lost the election targeted CENI officials based on their
   political opinion. The BIA did not abuse its discretion in finding the letter
   written by Katembo’s friend was entitled to little evidentiary weight because



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                                    No. 18-60770
                                  c/w No. 19-60395
   it was not based on firsthand knowledge, it was written in support of
   Katembo’s motion, and the writer was not available for cross-examination.
   See Matter of H–L–H & Z–Y–Z–, 25 I. & N. Dec. 209, 215 (BIA 2010),
   abrogated on other grounds by Huang v. Holder, 677 F.3d 130 (2d Cir. 2012).
   Further, the letter did not identify who was responsible for the alleged recent
   attack and did not show that the attack was related to Katembo’s CENI work
   or his political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992).
   Therefore, the BIA did not abuse its discretion in denying Katembo’s motion
   to reopen on the basis that he did not establish a prima facie case for asylum,
   withholding of removal, or CAT relief. See Gomez-Palacios, 560 F.3d at 358.
          PETITIONS FOR REVIEW DENIED.




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