Adolphe Mounkassa v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 09-1511
___________
ADOLPHE MOUNKASSA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A074-304-824)
Immigration Judge: Honorable Jeffrey L. Romig
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
September 8, 2009
Before: BARRY, SMITH and GARTH, Circuit Judges
(Opinion filed September 8, 2009)
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OPINION
___________
PER CURIAM
Adolphe Mounkassa petitions for review of an order of the Board of Immigration
Appeals (BIA). For the reasons below, we will deny the petition for review.
Mounkassa, a citizen of the Republic of Congo, first came to the United States in

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1993 as a student and became a lawful permanent resident in 1999. In June 1999, he was
sentenced to 151 months in prison after being convicted of importing heroin into the
United States. After he was charged as removable as an aggravated felon, Mounkassa
applied for asylum, withholding of removal, and relief under the Convention Against
Torture (CAT). The IJ concluded that Mounkassa was ineligible for asylum or
withholding of removal and denied CAT relief. Finding that Mounkassa was not
credible, the IJ concluded that Mounkassa had not shown that he had been tortured in the
past and that any risk of future torture was speculative. Mounkassa appealed. The BIA
upheld the IJ’s adverse credibility determination and dismissed the appeal. Mounkassa
filed a timely petition for review.
Mounkassa challenges only the denial of relief under the CAT. To be eligible for
deferral of removal under the CAT, Mounkassa must demonstrate that it is more likely
than not that he would be tortured if removed to the Republic of Congo. 8 C.F.R.
§ 208.17. Because Mounkassa is an aggravated felon, a determination he does not
challenge, our review is limited to constitutional claims or questions of law. 8 U.S.C. §
1252(a)(2)(C) & (D). This includes “issues of application of law to fact, where the facts
are undisputed and not the subject of challenge.” Kamara v. Attorney General, 420 F.3d
202, 211 (3d Cir. 2005).
Mounkassa argues that the BIA violated his rights to due process. However, he
does not argue that he was denied “notice, a reasonable opportunity to present evidence,

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Mounkassa acknowledges the factual nature of his challenge to the BIA’s1
determination that there is no pattern of torture of ethnic groups whose names begin with
“M.” Brief at 20.
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disclosure of fact finding or an individualized determination” on his CAT claim.
Jarbough v. Attorney General, 483 F.3d 184, 190 (3d Cir. 2007). While Mounkassa
argues that the BIA violated due process, several of his arguments are simply challenges
to the IJ’s factual determinations. His labeling of factual challenges as due process
claims is insufficient to give us jurisdiction over those issues under § 1252(a)(2)(D). Id.
First, Mounkassa contends that the BIA and IJ did not properly consider several
pieces of evidence: 1) the arrest and torture of his political leader and employer, Aymar
Mouity; (2) medical records; (3) reports of country conditions; and (4) evidence of torture
of those whose names begin with the letter “M.” However, that the BIA did not address
that evidence or make factual determinations Mounkassa believes are warranted is not an
issue of law. See Jarbough, 483 F.3d at 189-90.1
Next, Mounkassa asserts that the BIA violated due process when it found that he
did not explain inconsistencies in his testimony and the record with respect to two issues:
his brother’s refugee status and the residence listed on Mounkassa’s membership card for
his political party. He also argues that the IJ erred in considering his perjury at his

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The Board relied on a new provision of the INA that allows adverse credibility2
determinations to be based on inconsistencies in the alien’s testimony that do not “go[] to
the heart of [the alien’s] claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). We have not considered
whether this provision is consistent with due process. See Wang v. Holder, 569 F.3d 531,
538 (5th Cir. 2009)(canvassing Circuit law on the provision). Here, the Board candidly
admitted that the inconsistencies in Mounkassa’s testimony “might be considered minor
under prior law” and the discrepancy between his testimony at his criminal trial and his
testimony before the IJ “does not strike at the heart of the [CAT] claim.”
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criminal trial. We need not reach the issue of the adverse credibility determination2
because the BIA determined in the alternative that even if Mounkassa gave credible
testimony, it was speculative that he would be tortured given his limited involvement with
his political party and his presence in the United States since 1998. Thus, we turn to
Mounkassa’s challenges to that conclusion.
We have jurisdiction over Mounkassa’s argument that the BIA applied the wrong
standard of review in evaluating his CAT claim. However, the BIA concluded
“respondent has not shown that he more likely than not would face ‘torture,’ as defined
by regulation, upon removal.” As noted above, that is the correct standard for
Mounkassa’s CAT claim. Mounkassa also challenges the BIA’s determination that there
was no evidence that Mounkassa had been tortured in the past or would be tortured in the
future. We may reverse the BIA’s decision only if the record permits but one reasonable
conclusion that is not the one reached by the Board. I.N.S. v. Elias-Zacarias, 502 U.S.
478, 481 (1992). As noted above, the BIA relied on Mounkassa’s limited involvement
with his political party, as well as his lengthy absence from the Congo. While he cites to

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We may not consider “Attachment J” of Mounkassa’s brief because it is not part of3
the administrative record. 8 U.S.C. § 1252(b)(4)(A)(“[T]he court of appeals shall decide
the petition only on the administrative record on which the order of removal is based.”).
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general statements describing human rights violations in several reports, Mounkassa does
not point to any specific evidence that he, or any member of his political party, would be
singled out for torture. Certainly, Mounkassa has not shown that the record compels a3
finding that it is more likely than not that he will be tortured if removed to the Congo.
For the above reasons, we will deny the petition for review.

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