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Click here for the full text of this decision FACTS:Monique Mwembie petitions for review of the denial by the Board of Immigration Appeals of her application for asylum, withholding of removal, and protection under the Convention Against Torture. According to the record, Mwembie, a citizen of the Democratic Republic of Congo, had worked as a secretary in the communications department at the Marble Palace, where the president, Laurent Kabila, held various meetings. In 2001, she was arrested and imprisoned along with the rest of the department. During her six weeks in prison, Mwembie was interrogated, raped and suffered a miscarriage. After learning that he knew her family, a judge at the prison arranged for Mwenbie’s escape from the prison and out of the country. Mwembie entered the United States with a fraudulent Belgian passport. Mwembie filed her application Sept. 14, 2001. The IJ denied Mwembie’s claims, and the BIA affirmed without opinion. HOLDING:Denied. “What is most troubling about the IJ’s opinion, is not . . . her incorrect and irrational assumptions about human behavior and especially the behavior of people from foreign cultures, such as her assumptions about a victim’s ability to remember phone numbers, about all aliens’ behavior in saying good-bye to their families before fleeing, or about the ‘incomprehensible’ 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 president’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).” Despite these “enormous shortcomings,” the court sustains the IJ’s decision by denying the petition for review. Mwembie asserted that she was persecuted because of her imputed political opinion and her membership in a social group. The IJ, however, found that Mwembie was detained because of legitimate investigation into an assassination, and this finding is supported by substantial evidence. Even if the investigators believed that she was involved in a political conspiracy to overturn the Kabila regime, they were investigating her solely because she was a criminal suspect. Mwembie also claims she was persecuted on account of membership in a particular social group, “government employees.” 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. Because she can change her employment, which is not fundamental to her identity or conscience, she does not belong to a social group of government 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. The court also denies 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 (5th Cir. 2002). Mwembie’s appellate brief only claims that there is a “reasonable possibility,” not that it is “more likely than not,” that she would be tortured because she would be viewed as a “government opponent due to the timing and circumstances 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 unable to point out on appeal why it is more likely than not that she will be tortured, she has waived her CAT claim, the court concludes. OPINION:Smith, J. Smith, Garza and Prado, JJ. Garza, J., concurs except for part II (discussing the IJ’s findings).

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