Yafali, et al v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
December 28, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-60829
Summary Calendar
FRANCIS KISABONGO YAFALI; PAULIN MILAMBO,
Petitioners,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
--------------------
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A95 907 458
BIA No. A95 907 459
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Before JONES, WIENER, and DeMOSS, Circuit Judges.
PER CURIAM:*
Francis Kisabongo Yafali and his brother, Paulin Milambo
Yafali (“the Yafalis”), citizens and natives of the Democratic
Republic of the Congo (“DROC”), petition for review of the
Board of Immigration Appeals’ (“BIA”) decision denying their
applications for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). Because the Board of
Immigration Appeals summarily affirmed without opinion the
immigration judge’s (IJ) decision, the IJ’s decision is the final

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No. 04-60829
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agency determination for judicial review. See Soadjede v.
Ashcroft, 324 F.3d 830, 832 (5th Cir. 2003); 8 C.F.R.
§ 1003.1(e)(4)(ii).
The Yafalis first challenge the IJ’s adverse credibility
determination regarding their testimony that they were mistreated
by police after being assaulted by a group of students on account
of their membership in the Tutsi ethnic group. They contend that
the credibility determination was unwarranted because it was
based on trivial discrepancies or omissions.
“[A] credibility determination may not be overturned unless
the record compels it.” Lopez De Jesus v. INS, 312 F.3d 155, 161
(5th Cir. 2002). The allegation that the Yafalis were mistreated
by police was material to their claim for relief. Because the
IJ’s finding regarding credibility was based on “a reasonable
interpretation of the record and is therefore supported by
substantial evidence,” it will not be disturbed. See Chun v.
INS, 40 F.3d 76, 79 (5th Cir. 1994).
The Yafalis argue that, even if the alleged mistreatment by
police is discounted, they suffered mistreatment and persecution
at the hands of the students and are therefore entitled to
asylum. The incident involving the students does not rise to the
level of past persecution. See Mikhael v. INS, 115 F.3d 299, 304
& n.4 (5th Cir. 1997); Abdel-Masieh v. INS, 73 F.3d 579, 584 (5th
Cir. 1996). Because the Yafalis did not demonstrate past
persecution, they are eligible for asylum only if they have shown

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that a reasonable person in the same circumstances would fear
persecution if deported. See Jukic v. INS, 40 F.3d 747, 749
(5th Cir. 1994). After reviewing the record, we have concluded
that the BIA’s denial of asylum is supported by substantial
evidence. See Mikhail, 115 F.3d at 304.
The Yafalis next argue that they are entitled to withholding
of removal. Because the Yafalis have not met the standard for
asylum, they have not met the higher standard for withholding of
removal. See Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
Finally, the Yafalis challenge the denial of relief under
the CAT. Because the record does not compel the finding that the
Yafalis met their burden to show that it is more likely than not
than they would be tortured in the DROC, the denial of relief
under the will be upheld. See Bah v. Ashcroft, 341 F.3d 348, 352
(5th Cir. 2003).
The Yafalis’ petition for review is DENIED.

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