Moses Mukuka v. Jefferson Sessions, III
697 F. App'x 368
| 5th Cir. | 2017Background
- Moses Mulenga Mukuka, a Zambian national, petitioned for review of the BIA’s dismissal of his application for withholding of removal under the Convention Against Torture (CAT).
- The BIA adopted and agreed with the Immigration Judge’s findings; thus the IJ’s findings were reviewable by the court.
- Mukuka submitted country reports documenting criminalization and hostility toward homosexuality in Zambia but no first-hand evidence of torture or personal past torture.
- He conceded his accounts of others’ torture were based on hearsay and media reports; he primarily feared economic persecution on return.
- The BIA found country reports insufficient to show Mukuka would more likely than not be tortured or that the Zambian government would acquiesce in torture, noting few arrests and many acquittals.
- Mukuka moved for appointment of counsel and sought voluntary dismissal of his petition; both were denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether country reports show Mukuka would more likely than not be tortured on return because he is homosexual | Country reports and media show criminalization and implied risk of arrest and torture for homosexuals | Country reports lack first‑hand evidence of torture; few arrests and many acquittals undermine a finding of likely torture | Court held country reports were insufficient to meet CAT’s "more likely than not" standard; petition denied |
| Whether Zambian government would acquiesce in torture | Government tolerance of hostility and criminalization implies acquiescence to torture | Lack of evidence of government acquiescence and limited prosecutions/acquittals rebut inference of acquiescence | Court held evidence did not compel finding of government acquiescence |
| Whether IJ’s findings are reviewable along with BIA decision | Mukuka implicitly relied on IJ findings; review appropriate because BIA agreed with IJ | BIA’s decision is primary but IJ review is permitted when BIA adopts IJ reasoning | Court reviewed IJ’s findings because BIA agreed and applied substantial-evidence review |
| Whether counsel should be appointed and petition voluntarily dismissed | Mukuka requested counsel and sought dismissal of petition | Court applied rules and found dismissal procedure inappropriate; no stay motion filed | Court denied appointment of counsel and denied voluntary dismissal motion |
Key Cases Cited
- Zhu v. Gonzales, 493 F.3d 588 (5th Cir. 2007) (courts generally review BIA decisions but may consider IJ decisions when BIA adopts them)
- Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) (BIA adoption of IJ findings makes IJ findings reviewable)
- Zhang v. Gonzales, 432 F.3d 339 (5th Cir. 2005) (standard of review for CAT eligibility is substantial evidence)
- Tamara-Gomez v. Gonzales, 447 F.3d 343 (5th Cir. 2006) (evidence required to show likelihood of torture and government acquiescence under CAT)
- Chen v. Gonzales, 470 F.3d 1131 (5th Cir. 2006) (CAT requires proof of torture, not merely persecution; rigorous standard applies)