Mwembie v. Gonzales

REVISED APRIL 12, 2006
In the
United States Court of Appeals
for the Fifth Circuit
_________
m 04-60832
Summary Calendar
______________
MONIQUE T. MWEMBIE,
Petitioner,
VERSUS
ALBERTO GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
_________________________
Petition for Review of an Order of
the Board of Immigration Appeals
_________________________
Before SMITH, GARZA,* and PRADO,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Monique Mwembie petitions for review of
the denial by the Board of Immigration Ap-
peals (“BIA”) of her application for asylum,
withholding of removal, and protection under
the Convention Against Torture (“CAT”). We
deny the petition.
* Judge Garza concurs except for part II.
United States Court of Appeals
Fifth Circuit
F I L E D
March 16, 2006
Charles R. Fulbruge III
Clerk

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2
I.
Mwembie, a citizen of the Democratic Re-
public of Congo (“DRC”), fled that country in
2001 after the assassination of the former pres-
ident, Laurent Kabila.1 Mwembie worked as a
secretary in the communications department at
the Marble Palace, R. 461, 467, where Kabila
held various meetings.2 Mwembie’s job in-
volved editing and/ or creating press releases
regarding the meetings, based on reports she
received from others. R. 186-187.
Her job went well until January 16, 2001,
when she heard gunshots, during which every-
one panicked. R. 461, 467. Soldiers and other
people were running everywhere. R. 461, 467.
At first, Mwembie and others in her office hid
under their desks; she was shaking. R. 177.
The gunshots lasted about thirty minutes.
R. 177.
After that, Mwembie went outside her
room and saw everyone running around. R.
178. Other colleagues in the hallway also
asked what was going on. R. 461, 467. She
did not really know what to do, so she picked
up the phone, but there was no dial tone. R.
178.
Around 1:30 p.m. the military ordered that
each person return to his work station, ex-
plaine that the Marble Palace was under siege,
and said no one was to leave the palace.
R. 461, 467. Mwembie did not know whether
it was the police or the military that told them
not to leave the palace and that they had been
taken “hostage.”3 R. 179-80. Because of the
large number of soldiers present, she thought
they consisted of not only the military guard of
the president working at the palace, but also
some other soldiers from the outside. R. 149.
Mwembie remained at her desk till 10:00
p.m., when the military put everyone into a
1 The opinion of the immigration judge (“IJ”)
incorrectly calls the former president “Lavent
Cabila.”
2 The IJ’s opinion states that the Marble Palace
was the “governmental palace” and that “all of the
government’s business was conducted out of the
governmental palace.” This finding has no support
in the record. Mwembie testified that the Marble
Palace was used for meetings; she never said it was
used to conduct “all” government activity. R. 141,
143.
Mwembie also testified that apparently around
100 to 200 civilians were arrested at the palace and
that all civilians there were arrested. R. 181. If in-
deed the palace were the seat of the DRC “gov-
ernment,” including all the ministries (e.g, finance,
tourism, education, health, interior), from which
“all” government business was conducted, it would
have provided office space for more than 100 to 200
civil servants.
3 During cross-examination, the Department of
Homeland Security insisted that Mwembie and the
others were not taken “hostage” but were only “de-
tained for questioning,” because the police do not
take hostages. R. 79-80. The assumption that the
police in a country with confirmed human rights
abuses never take anyone “hostage” reflects not
only a lack of familiarity with foreign country
conditions, but also insensitivity to misunderstand-
ings resulting from the use of translators. Iao v.
Gonzales, 400 F.3d 530, 533-34 (7th Cir. 2005)
(describing these two problems and a few others as
“disturbing features” present in a large number of
cases reviewed by the Seventh Circuit). If Mwem-
bie used a word in the Lingala language akin to the
word “sequester” to describe the fact she was not
allowed to leave the building, a closer translation is
probably “taken hostage” rather than “detained.”

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3
jeep,4 R. 147, where they were ordered to lie
down and close their eyes, R. 468. Someone
asked where they were being taken and why,
and in response the soldiers beat the person
with a baton, causing his nose and mouth to
bleed; the soldiers then explained that everyone
had to be quiet and did not have the right to ask
questions. R. 468, 148.
Mwembie and the others were taken to a big
room, where they were kept for two days.
R. 150. She explained that everyone working
at the palace (approximately 100 or more peo-
ple) were taken to that room. R. 181. On the
third day, the women were separated from the
men, and all the women that worked in Mwem-
bie’s department were taken to one prison.
R. 150.
There, Mwembie and five other women from
her department were taken to a cell, R. 150,
which she described as one-third the size of the
courtroom. R. 181. They were shown a rug on
which they were to sleep and five or so soldiers
that were supposed to watch over them. R.
150. Mwembie did not know how many
women were in the prison and could not
estimate how many had been arrested on Janu-
ary 16. R. 181. They were fed a single piece of
bread and tea mixed with milk once a day and
were allowed to use an outdoor restroom once
a day. R. 153. They received no medical
treatment. R. 159.
Each woman was taken daily to be interro-
gated. R. 151, 161-62. During her question-
ing, Mwembie was told she had been arrested
because she was working at the palace on the
day Kabila was killed. R. 161. There were
three judges who interrogated them. R. 161.
The interrogators told her they had talked to
her friends, who had said she had given infor-
mation to outsiders about when Kabila was in
the palace and that she had enabled the out-
siders to enter the palace. R. 152. Mwembie
told them she had no involvement in Kabila’s
death or knowledge of who had killed him.
R. 469, 153. The women were instructed not
to talk to each other about the interrogations.
R. 153.
The guards in charge of Mwembie’s cell
beat and raped each of the women in the cell
on a daily basis, each taking a turn while the
others held the woman down, or watched.
R. 155, 157-158, 160. Mwembie was one
month pregnant at the time of her detention.
R. 160. On one occasion when she was raped,
she suffered a miscarriage, causing her to lose
blood and then consciousness. R. 157, 159.
She was traumatized over this experience.
R. 159. The guards, however, took no mercy
on her and continued to rape her even after the
loss of her child. R. 160.
One day, during an interrogation, Judge Gi-
gal asked Mwembie about her parents and told
her he knew her parents, sister, and aunt and
that because he knew her family, he would
help her. R. 161-163. He asked for the help
of Chief Judge Mukumbi,5 who was his uncle,
4 In her opinion, the IJ also snaps at the use of
the word “hostage.” R. 69. She incorrectly states,
however, that Mwembie testified that she was taken
hostage at about 10:00 p.m., when in fact Mwembie
testified that she was held hostage from 1:30 p.m to
10:00 p.m. R. 147, 467.
5 The IJ’s opinion incorrectly calls Judge Mu-
kumbi three different names in the same paragraph:
Mokumbe, Mukumbe, and Makumbe, R. 70, and
refers to him incorrectly as Mukumbe thereafter.
The correct name is Mukumbi, as shown in
Mwembie’s testimony, R. 163, and the asylum
(continued...)

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to organize Mwembie’s escape from prison. R.
164.
Two days after the judges promised to help
her, soldiers came for her in the middle of the
night and took her out of her cell; it was well
known that when soldiers take someone in the
middle of the night, that person will be killed.
R. 164. They did not kill her, however, but put
her into Mukumbi’s car trunk, whereupon he
drove away with her in the trunk. R. 164.
After thirty minutes, he stopped and made
her change her clothes, R. 164, then she rode
inside the car to the border at Kinsuka,
R. 164-165. There, Mukumbi told her that it
would be made to appear on paper that she had
been killed in prison, so she was never to return
to the DRC, R. 164, 173, 184, or to communi-
cate with anyone, R. 473. Gigal, who knew her
family, indicated he would explain to her par-
ents that she had actually escaped the country.
R. 172-173.
Mwembie then crossed the river and met a
person who was waiting there with a car.
R. 165. She hid inside that person’s home in
Brazzaville for two weeks until he obtained a
passport for her to leave the country. R. 165.
Mwembie and this person flew from Brazzaville
to Ethiopia, then to Italy, and finally, to New
York. R. 165-166.
During the immigration inspection at the
airport in New York on March 17, 2001,
Mwembie’s companion presented the fraudu-
lent Belgian passport he had obtained for her,
and spoke on her behalf, because she did not
understand English.6 R. 166. After their
admission into the United States, they took a
bus to Raleigh, North Carolina, R. 166, where
her companion left her to return to the Congo,
R. 166.
Mwembie then contacted the only person
she knew in the United States, Laurent Mata-
latala,7 who resided in San Antonio, Texas.
R. 166. Though Mwembie had never met
Matalatala, she knew of him through a friend,
and they had exchanged letters and had spoken
on the telephone. R. 169-170. After con-
tacting Matalatala, Mwembie took a bus to
San Antonio, where he picked her up. R. 167.
After hearing her story, Matalatala advised her
to apply for asylum and assisted her in filing
her application on September 14, 2001.
R. 167, 176, 482.
II.
The IJ denied Mwembie’s claims, and the
BIA affirmed without opinion. Therefore, the
proper focus of our review is the underlying
decision of the IJ. Garcia-Melendez v. Ash-
croft, 351 F.3d 657, 660 (5th Cir. 2003). The
IJ devoted most of her opinion to credibility
determinations and found that Mwembie is
ineligible for asylum and withholding of re-
moval and protection under CAT.
5(...continued)
application. R. 472.
6 The IJ inaccurately states that Mwembie en-
tered the United States based on a fraudulent pass-
port and visa from Belgium. Holders of Belgian
passports do not need a “visa” to enter this
country, because they receive a visa-waiver. Thus,
Mwembie did not enter based on a fraudulent
“visa,” but on a “visa waiver” obtained under the
false pretense that she was a Belgian citizen.
7 There are various spelling of Matalatala’s
name in the record. We use the name used in
Mwembie’s original asylum application of Septem-
ber 14, 2001, which Matalatala helped prepare.

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5
We review this factual basis for substantial
evidence. Zhang v. Gonzales, 432 F.3d 339,
343-44 (5th Cir. 2005). Under that standard,
we will not disturb the IJ’s findings of fact
“unless we find not only that the evidence
supports a contrary conclusion, but that the
evidence compels it.” Chun v. INS, 40 F.3d 76,
78 (5th Cir. 1994). The alien bears the burden
of proving that “the evidence was so compel-
ling that no reasonable factfinder could con-
clude against it.” Id.
For asylum, withholding of removal, and
CAT claims, “[t]he testimony of the applicant,
if credible, may be sufficient to sustain the bur-
den of proof without corroboration.”8 We can-
not second-guess the BIA or IJ by substituting
our credibility judgment for that of the factfind-
er. Chun, 40 F.3d at 78.
Even given this highly deferential standard,
however, the IJ’s conclusion that Mwembie did
not meet her burden of persuasion on the like-
lihood of future persecution if returned to DRC
is not supported by substantial evidence. Al-
though we ultimately sustain the IJ’s decision
by denying the petition for review, it is not be-
cause Mwembie has not met her burden of
proof that she will be persecuted, but because
she has not satisfied her burden to show that
she will be persecuted “on account” of one the
five enumerated reasons.9 We address, none
theless, the credibility issue because of the
poor quality of the IJ’s work and because the
parties devote the bulk of their briefs to this
question.
Although “[w]e will not review decisions
turning purely on the [IJ’s] assessment of the
alien petitioner’s credibility,” Chun, 40 F.3d at
78 (quoting Mantell v. INS, 798 F.2d 124, 127
(5th Cir. 1986), we have not read this to mean
that credibility determinations that are unsup-
ported by the record and are based on pure
speculation or conjecture will be upheld.
Rather, our caselaw interprets this as meaning
that where the judge’s credibility determina-
tions are supported by the record, we will
affirm them even if we may have reached a
different conclusion, because we will reverse
only if the record “compels” a different con-
clusion.10 In fact, this is the standard the De
8 8 C.F.R. §§ 208.13(a) (asylum); 208.16(b)
(withholding of removal); 208.16(c)(2) (CAT).
9 To be eligible for asylum, an alien must be
“unable or 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).
To demonstrate a well-founded fear of persecution,
(continued...)
9(...continued)
an alien must show “a subjective fear of
persecution, and that fear must be objectively
reasonable.” Lopez-Gomez v. Ashcroft, 263 F.3d
442, 445 (5th Cir. 2001).
A claim for withholding of removal, meanwhile,
does not require proof of subjective fear, Zhang,
432 F.3d at 344, but it does require that the alien
prove a “clear probability” of future persecution,
IRS v. Stevic, 467 U.S. 407, 413 (1984):
Mwembie must show it is more likely than not that
“[her] life or freedom would be threatened . . .
because of [her] race, religion, nationality, mem-
bership in a particular social group, or political
opinion.” 8 U.S.C. § 1231(b)(3)(A).
10 See, e.g., Lopez de Jesus v. INS, 312 F.3d
155, 161 (5th Cir. 2002) (“[A] credibility deter-
mination may not be overturned unless the record
compels it.”); see also Kurji v. Gonzales, 140 Fed.
Appx. 549, 550 (5th Cir. 2005) (per curiam)
(“[T]he record does not compel a credibility deter-
(continued...)

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6
partment of Justice cites in its brief, though it
mistakenly labels Third Circuit precedent as
coming from this court:
Further, although adverse credibility deter-
minations cannot be based on speculation or
conjecture, such findings will be afforded
substantial deference where it [sic] is
grounded in evidence in the record and
where the [IJ] provides specific cogent rea-
sons for her determination. Abdulrahman v.
Ashcroft, 330 F.3d 587, 597 (5th [sic] Cir.
2003).
Many of the key findings by the IJ are not
supported by the record and are based on pure
speculation or conjecture. For example, the IJ
found it implausible that Mwembie fled her
country without saying goodbye to her family.
To reach this finding, however, the IJ should
have had more information.
There is nothing in the record to suggest that
aliens fleeing from prison to a different country
usually go home to say good-bye. In fact, the
BIA has rejected such a speculation and has
found that it is not unreasonable for an asylum
applicant to flee his country, leaving family
behind, where returning to his or her family
members would put his life in danger. In Re
B-, 21 I&N Dec. 66 (BIA 1995).
Mwembie did not have control of where
Mukumbi was driving while she was in the
trunk of his car. Further, Mwembie escaped to
a different country during the night of her es-
cape from prison: She fled from the DRC to
Congo Brazzaville. During her short two-
week stay in Brazzaville, she was not allowed
to leave the house. So, there is nothing in the
record that would contradict her testimony
that she did not and could not say good-bye to
her family; in fact, the record compels the
opposite conclusion.
The IJ also found that Mwembie’s testi-
mony was vague because she gave few details
of her life in prison “other than consistently
stating that she was raped daily and interro-
gated.” To the contrary, Mwembie described
prison life in detail. She explained what type
of food she received, how often, how many
times she was allowed to use a restroom, how
many cellmates she had, and how big her cell
was. She gave the number and names of the
judges and the number of soldiers guarding her
cell and described in detail the episode leading
to her miscarriage.
In discrediting Mwembie’s testimony as
vague, the IJ pointed out that Mwembie did
not state the date on which she was released
from prison. The record compels a different
conclusion, however. Mwembie testified that
she fled to Congo Brazzaville on the night of
her escape. She also wrote in her asylum ap-
plication that she fled her native county on
March 1, 2001. R. 475. Accordingly, in light
of the fact that she escaped from prison on the
day she fled to Brazzaville, she must have es-
caped on March 1 as well. This date is consis-
tent with her account that she spent six weeks
in prison (having been imprisoned on January
16, 2001), that she spend about two weeks in
Brazzaville, and that she arrived in the United
States on March 17.
The IJ also found that Mwembie’s testi-
mony that she was raped daily is implausible
because “the brutality that [she] has described
10(...continued)
mination contrary to that of the IJ.”); In re A-S-, 21
I&N Dec. 1106 (BIA 1998) (explaining that the
BIA generally defers to and adopts the IJ’s
credibility determination if supported by the record).

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7
is simply not comprehensible.” R. 77. This is
error.
That brutality is extraordinary does not
render it implausible. Under the IJ’s logic,
Jews fleeing Nazi Germany and describing the
concentration camp atrocities would have been
denied asylum because the brutality they de-
scribed would be “incomprehensible.”
Absent more information about Congolese
guards watching prisoners for the military tri-
bunals, the record does not support a conclu-
sion that the brutality was incomprehensible. In
fact, the record shows that several defendants
in the Kabila trial were tortured in prison.
R.431. The record also does not contain in-
formation that would challenge the claim that
the soldiers were brutal. To the contrary, the
record shows that the Congolese guards ap-
parently told Mwembie that she deserved to be
raped and die because she was a criminal.
R. 470-471. This justification for brutality is
far from incomprehensible.
Thus, given the justification the guards of-
fered for their brutality, there is no reason to
think they aspired to be “comprehensible” per-
secutors who rape less than daily. Also, be-
cause the record indicates that Mwembie was
not allowed to have a lawyer or to see her
family, there was no apparent external pressure
that would keep the soldiers in check.
The IJ also found it implausible that five
guards were guarding six female prisoners.
That finding would be defensible if indeed there
were any evidence that the guards were
guarding only the six female prisoners in
Mwembie’s cell. There is, however, no evi-
dence that her cell was the only one in the pris-
on or that the guards did not guard any other
cells. Although Mwembie could not say how
many women were in the prison, she never tes-
tified that there were no other women there.
She merely had no information with respect to
that. The IJ’s finding is not supported by sub-
stantial evidence in the record, which compels
a contrary conclusion.
The IJ also found it implausible that two
judges helped Mwembie escape when it was in
their power to release her. But, there is no in-
dication in the record that the “decision to re-
lease her was in their hands.” There is no hint
that any suspect was released before trial, and
the verdict was rendered almost two years
after January 16, 2001. R. 287. Indeed, the
fact that as many as fifty people were found
not guilty suggests that no one was released
prior to trial. R.287.
Therefore, if indeed one of the judges was
a friend of Mwembie’s parents, it is plausible
that he would have helped her get out of pri-
son before trial, given that prison meant daily
rape and a slice of bread per day for several
more months. Further, we have no informa-
tion on whether the interrogating judges would
have been the same judges presiding at trial.
If they were not the same, they presumably
could not have helped release her.11
The IJ also found it implausible that the
judges would make it appear on paper that
Mwembie had been killed, but on the other
hand telling her family she had escaped.
Again, this is not a rational reason for which
any “reasonable factfinder” could ever find a
11 Although the Department of Justice points out
that it “strains credulity” that a judge would risk
his career for Mwembie, here the risk of saving the
innocent daughter of a friend or neighbor from
daily rape and possible death may have been
deemed worth taking.

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8
testimony implausible. There is absolutely no
inconsistency between the two actions: The
judges, who are friends of Mwembie’s family,
wanted the DRC government to think she was
dead so it would not harass her family after her
escape, and the judges also wanted her family
to know she in fact was safe. There is nothing
in the record to suggest otherwise.
The IJ also found implausible Mwembie’s
account of being detained for more than two
days, because the IJ thought that the record
shows that the only women who were detained
were married to other suspects. This statement
misreads the record.
The newspaper articles and reports state that
“at least three women were arrested and tried
for and on behalf of their husbands, R. 287;
“the suspects included 10 civilians, among
which five women,” R. 292; “a number of the
female defendants may be . . . detained simply
because they were related or married to sus-
pects still at large,” R. 302; and “Kabila’s for-
mer guards and aides, as well as the wives and
girlfriends of suspects are charged with a role in
the assassination, R. 434. Therefore, the fact
that “at least three women” were arrested on
behalf of their husbands does not indicate that
only those women, or only those types of wom-
en, were arrested; more information is needed
to draw that inference.
Similarly, the record shows that “a number
of female” defendants were arrested on behalf
of their husbands, not that “all” women were.
Also, the record indicates that not only the
wives of suspects, but also a number of Kabila’s
“guards and aides” were arrested: As an
employee at the Marble Palace, Mwembie can
be considered to have been a presidential aide.
Therefore, there is nothing in the record that
supports the IJ’s finding, and the record com-
pels a different conclusion.
The IJ took issue with Mwembie’s testimo-
ny that she memorized and remembered Matal-
atala’s phone number; the IJ thought that no
one who suffered daily rape for six weeks
could remember a phone number. To make
that decision, however, the IJ would need to
know several facts not in the record: How
often did Mwembie call Matalatala before her
imprisonment; how good was Mwembie’s
memory generally; and how is long-term
memory affected by six weeks of prison and
rape? Though Mwembie indicated she lost
consciousness after one of the rapes, there is
no indication that the rapes affected anything
other than her short-term memory.
In fact, it is quite plausible that Mwembie
remembered Matalatala’s phone number, be-
cause she testified that she did not call him
from her mobile phone but from a phone
booth, where the cost was one dollar a minute.
Because she had to dial the full number every
time, it is more likely that she would have
memorized it.
Therefore, the IJ’s reasoning why Mwem-
bie could not have remembered the phone
number is not only not supported by the re-
cord, but also not “rational.” Although we
agree with the premise of Dia v. Ashcroft, 353
F.3d 228, 362 (3d Cir. 2003) (en banc) (Alito,
J., dissenting), that an IJ can base some of his
determinations on his understanding of general
human behavior, such understanding must be
“rational.” Here, the IJ’s finding is not ra-
tional, and the record compels a different re-
sult. See INS v. Elias-Zacarias, 502 U.S. 478,
481-84 (1992).
What is most troubling about the IJ’s opin-
ion, is not, however, her incorrect and irratio-

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9
nal assumptions about human behavior and
especially the behavior of people from foreign
cultures, such as her assumptions about a vic-
tim’s ability to remember phone numbers, about
all aliens’ behavior in saying good-bye to their
families before fleeing, or about the “in-
comprehensible” brutality of the persecutors. It
is rather the IJ’s lack of familiarity with the
record and her inability to comprehend it, as
demonstrated by her misspelling of the presi-
dent’s name, her three different misspellings of
Mukumbi in the same paragraph, and her
fabrication of facts not in the record (such as
her statements that “all” of the government’s
business was conducted out of the Marble
Palace and that only women married or related
to male suspects were detained in the Kabila
investigation).
There are other serious flaws in the IJ’s an-
alysis. For example, in her asylum application
Mwembie indicated that it was one of the sol-
diers who took her to a judge to be interrogat-
ed, who asked her who her parents were and
told her he knew her family because they were
neighbors in Lubumbushi, Katanga. R. 471-
472. Mwembie then explained that two days
later that soldier, who is now called the “Com-
mander,” took her to the judge and said she
was the daughter of Mwembie and that Mu-
kumbi told the Commander he would help her.
R. 472. Then, a few days later, Mwembie es-
caped in the trunk of Mukumbie’s car with the
help of Mukumbie and the Commander, now
called “Commander Mukumbi.” R. 472.
Mwembie testified, however, that it was Gi-
gal, at interrogation, not one of the soldiers,
who asked who her parents are. He knew her
parents, too, but from Russia, not from Lubum-
bashi. Also, it was Mukumbi, not Commander
Mukumbi, who helped her escape. These in-
consistences deserved further probing.
Also, an item of identification that Mwem-
bie submitted with her application indicates,
albeit in French, that during 2000-2001, she
was a first-year student in molecular biology at
the University of Medicine. R. 483. She did
not mention this fact; rather, her application
seems to indicate she never attended post-sec-
ondary education other than a computer
course. R. 454. According to the educational
history she provided in her asylum application,
Mwembie only attended high school and a
computer course and graduated from the com-
puter course in 1997. R. 454. Also according
to the record, Mwembie was a mother of
three, and had her first two children when she
was 15 in 1988 and her third child when she
was 22. Thus, apparently she was able work
as a communications secretary, be a university
student in a challenging subject such as
molecular biology, and be the mother of three,
all at the same time, during 2000-01. Though
this could be plausible if, for instance, she at-
tended classes at night, the IJ should have
explored this issue.
III.
Despite these enormous shortcomings in
the IJ’s performance, we sustain her decision
by denying the petition for review because she
also found that Mwembie was not persecuted
on “account of any of the five reasons enumer-
ated under the Act.” Although the IJ did not
further elaborate, this was the correct way to
dispose of the claims, which both require that
Mwembie have been persecuted on account of
“race, religion, nationality, membership in a
particular social group, or political opinion.”
In her various filings, Mwembie asserted
that she was persecuted because of her “im-
puted political opinion” and her “membership
in a social group.” The IJ, however, found
that she was detained because of “legitimate

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investigation” into the assassination, R. 79, and
this finding is supported by substantial
evidence.
In other words, even if Mwembie’s account
is believable, she claims, in her asylum applica-
tion and testimony, that she was imprisoned
because she was in the building at the time of
the assassination. Even if the investigators be-
lieved she was involved in a political conspiracy
to overturn the Kabila regime, they were
investigating her solely because she was a
criminal suspect in a murder, not because she
was against the Kabila regime. Therefore, she
was ineligible for asylum or withholding of
removal.12
Mwembie also claims she was persecuted on
account of membership in a particular social
group, “government employees.” R. 25. Even
if “government employees” were found to be a
cognizable social group, there is no evidence
supporting the claim that all DRC government
employees were targeted or persecuted. To
the contrary, it appears that only about one
hundred government employees at the Marble
Palace, not all government employees in
general, were singled out for “persecution.”
Even if the group were defined to be “all
government employees at the Marble Palace,”
this would not meet the definition of “social
group.” To establish that he is a member of a
“particular social group,” an applicant must
show that he was a member of a group of per-
sons that share a common immutable
characteristic that they either cannot change or
should not be required to change because it is
“fundamental to their individual identities or
consciences.”13
Mwembie, like the taxi drivers in Acosta,
can change her employment and thus her stat-
us of “government employee.” Because she
can change her employment, which is not fun-
damental to her identity or conscience, she
does not belong to a “social group” of govern-
ment employees working at the Marble Palace.
In any event, the record shows that she was
not imprisoned “because” she belonged in the
group of government employees working at
the Marble Palace, but “because” she was a
criminal suspect.
IV.
We also deny the petition for review on the
CAT claim. To secure relief under CAT, an
alien does not need to show persecution based
on one of the five protected characteristics for
claims of asylum and withholding of removal.
Efe v. Ashcroft, 293 F.3d 899, 907 (5th Cir.
2002). Thus, if Mwembie claims she will be
raped in prison or sentenced to death14 because
she was a criminal suspect in Kabila’s assassi-
nation, she might have a torture claim even if
12 Ozdemir v. INS, 46 F.3d 6, 8 (5th Cir. 1994)
(finding that police interrogated petitioner because
they were seeking information relating to a terrorist
incident, not because he was Kurdish or because he
wanted discrimination against Kurds to end); Lwin
v. INS, 144 F.3d 505, 509 (7th Cir.1998); Dinu v.
Ashcroft, 372 F.3d 1041 (9th Cir.2004); Shardar v.
Ashcroft, 382 F.3d 318, 323-24 (3d Cir. 2004).
13 Ontunez-Tursios v. Ashcroft, 303 F.3d 341,
352-53 (5th Cir. 2002) (citing Matter of Acosta,
19 I&N Dec. 211, 233, 1985 WL 56042 (BIA
1985) (rejecting claimed social group of Salvador-
an taxi cooperative because characteristics that
defined taxi drivers are not immutable)).
14 We do not address the issue of whether a rape
or a killing of someone in custody by a government
official who was holding the person in custody
constitutes torture.

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she does not have an asylum claim.15
Under CAT, the alien must meet the “higher
bar” of proving it is more likely than not that he
will be tortured if returned to his home country.
Id.16 To meet this burden, he may produce
evidence of past torture, an inability to relocate
to a safer part of the country, human rights
abuses committed within the country, and any
other relevant information. See 8 C.F.R. §
208.16(c)(3).
Mwembie’s appellate brief only claims that
there is a “reasonable possibility,” not that it is
“more likely than not,” that she would be tor-
tured because she would be viewed as a “gov-
ernment opponent due to the timing and cir-
cumstances under which she left her country.”
A “reasonable possibility” standard is less than
a “more likely than not” standard. Mwembie
does not further elaborate on the torture issue
and does not brief the CAT claim at all or cite
legal precedent. Therefore, because she is un-
able to point out on appeal why it is more like-
ly than not that she will be tortured, she has
waived her CAT claim.17
The petition for review is DENIED.
15 The viability of a torture claim under this
circumstances would depend, however, on whether
the “non-political crime” exception applies, because
according to her story, Mwembie is a suspect in a
murder case, and it may not be prudent for
American, rather than Congolese, courts to de-
termine her guilt or innocence, absent proof that she
will be found guilty regardless of her actual guilt or
innocence. We do not resolve this question, because
Mwembie’s torture claim fails for a different reason.
16 The relevant regulation defines torture as
any act by which severe pain or suffering,
whether physical or mental, is intentionally in-
flicted on a person for such purposes as obtain-
ing from him or her or a third person information
or a confession, punishing him or her for an act
he or she or a third person has committed or is
suspected of having committed, or intimidating
or coercing him or her or a third person, or for
any reason based on discrimination of any kind,
when such pain or suffering is inflicted by or at
the instigation of or with the consent or
acquiescence of a public official or other person
acting in an official capacity.
8 C.F.R. § 208.18(a)(1) (2000).
17 See, e.g., Calderon-Ontiveros v. INS, 809
F.2d 1050, 1052 (5th Cir. 1986); see also Mediou-
ni v. INS, 314 F.3d 24, 28 n.5 (1st Cir. 2002) (“As
[the petitioner] did not brief his claim under the
Convention Against Torture on appeal, we consider
the argument waived.”).

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