William Johnathan KIMUMWE, Petitioner, v. Alberto GONZALES, Attorney General of the United States, Respondent, 431 F.3d 319

COLLOTON, Circuit Judge. William Kimumwe petitions for review of a decision of an Immigration Judge denying his application for asylum, withholding of removal, and protection under the Convention Against Torture. We conclude that the I J’s determination was within the range of decisions available to a reasonable adjudicator, and we therefore deny the petition for review. I. Kimumwe is a native of Zimbabwe who fled his country in March 2002. He alleges that he is a homosexual, and that he left Zimbabwe on account of the government’s intolerance of homosexuality.

Kimumwe contends that he suffered past persecution by the Zimbabwean government, and that he has a well-founded fear that he would be persecuted if he were returned. In support of his claim regarding past persecution, Kimumwe described several incidents from his youth in Zimbabwe. He explained that while attending secondary school in 1995 at age 12, he had sexual relations with another boy his age. Ki-mumwe admitted that he “lured” the other student into participating in sexual activity, and acknowledged that the other student may not have been gay.

The school’s policy prohibited sexual activity of any kind, and Kimumwe was expelled from school as a result of the incident. In 1998, while attending the College of Bulawayo, Kimumwe invited a fellow student to his room for drinks, during which time the two men became drunk and engaged in sexual activity. The second student reported the incident to college authorities, who in turn reported it to police, and Kimumwe was arrested. Police detained Kimumwe for two months, but did not charge him with a criminal offense.

Kimumwe testified that he was accused of getting the other boy drunk, and then having sex with him, although Kimumwe also stated that a jailer later told him that he was detained because he was gay. No physical abuse occurred in the jail. Kimumwe was released from jail when the head of the orphanage where he was raised bribed prison officials. Police gave Kimumwe an unofficial document which stated that charges against him had been dismissed, and he testified to no further problems with authorities after his release.

President Kobert Mugabe of Zimbabwe declared homosexuality illegal in 1998, and in December 1998, after Mugabe made further anti-homosexual pronouncements, Kimumwe left Zimbabwe for Kenya. Ki-mumwe later left Kenya for the United States with the assistance of the Gay & Lesbians of Zimbabwe organization. Kimumwe entered the United States in 2002, and eventually applied for asylum, withholding of removal, and protection under the CAT.

In rejecting his claims, the IJ reasoned that homosexual orientation may qualify as a “particular social group” for purposes of determining whether an alien is a “refugee,” see 8 U.S.C. § 1101(a)(42); Matter of Toboso-Alfonso, 20 I. & N.

Dec. 819, 822 (B.I.A.1990), but concluded that Kimumwe’s problems with authorities in Zimbabwe “were not based simply on his sexual orientation, but instead resulted [from] his engaging in prohibited sexual conduct.” The IJ recognized that the President of Zimbabwe is not tolerant of homosexuals and has expressed disdain for them, but the IJ found these official pronouncements — without any accompanying evidence of persecution based solely on homosexual status — insufficient to establish a well-founded fear of future persecution.

The IJ also stated that Kimumwe had presented no objective evidence to confirm his homosexuality. Having found insufficient evidence on the asylum claim, the IJ concluded that Ki-mumwe also failed to meet the more stringent requirements for withholding of removal and protection under the CAT. The BIA affirmed without opinion. II. Kimumwe’s first claim is that the IJ erred in denying his application for asylum.

The Attorney General has discretion to grant asylum to an alien who is 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); see 8 U.S.C. § 1158(b). Generally speaking, “[persecution is the infliction or threat of death, torture, or injury to one’s person or freedom, on account of a protected characteristic.” Salkeld v. Gonzales, 420 F.3d 804, 808-09 (8th Cir.2005) (internal quotations omitted).

We review the BIA’s determinations under the “substantial evidence” standard, which, in this context, means that we uphold the agency’s decision unless any reasonable fact-finder would be compelled to conclude that Kimumwe demonstrated the requisite fear of persecution. See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zaearias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Menen- dez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004). Because the BIA affirmed the IJ’s decision without opinion, we treat the IJ’s conclusions as those of the agency. 8 C.F.R. § 1003.1(e)(4); see Dominguez v.

Ashcroft, 336 F.3d 678, 679 n. 1 (8th Cir. 2003). Kimumwe argues that he satisfied his burden of showing a well-founded fear of future persecution, based largely on past persecution in Zimbabwe.' See 8 C.F.R. § 208.13(b)(1). He contends that he is a homosexual, and that his expulsion from secondary school in 1995 and his arrest and detention in 1998 while attending the College of Bulawayo are evidence of past persecution based on his membership in a particular social group.

The IJ concluded, however, that the actions of Zimbabwean authorities in these instances were not based on Kimumwe’s sexual orientation, but rather on Kimumwe’s involvement in prohibited sexual conduct. As to the secondary school, there was evidence in the record that Kimumwe, at age 12, “lured” a student into sexual activity, and was expelled from the school on that basis.

Kimumwe testified that it was a violation of school policy for students to have sex with each other, that he would have been expelled for having sex with either a boy or a girl because “it was illegal to have sex,” and that he admitted at the time to luring another boy, who was not gay, into having sexual intercourse. (R. 153-54). Expulsion of a boy from school under these circumstances does not support, much less compel, a finding of persecution on the basis of homosexual status.

Kimumwe testified that while attending college, he fell in love with a 16-year-old boy who “had love for girls” and was not gay, but Kimumwe thought he “could change him,” and could make him interested in homosexual sex. (R. 155). Ki-mumwe admitted that “one time I got him drunk in my room and slept with him,” stating that “he drank my drinks and he got drunk so... I was responsible for that.” (R. 155-56). The next day, the other student said that Kimumwe “had done something wrong to him” by engaging in sexual activity, and reported the incident to school officials. (R. 157).

Ki-mumwe was arrested, and he testified inconsistently about the circumstances, saying at one point that the police said “it’s illegal to be gay in public,” but on further examination stating that they “they didn’t tell me why they were taking me.” (R. 158-59). After a bribe resulted in Ki-mumwe’s release, police gave him a letter stating that he had been charged with sodomy and sexual assault, but was released due to a lack of evidence. (R. 160).

Again, we believe a reasonable adjudicator could conclude that the government’s action in this instance was based not on Kimumwe’s homosexual status, but on allegations of sexual misconduct, even assuming that the sanction was extreme enough to constitute “persecution” and that homosexual status is a “particular social group” for purposes of the governing statute. See Molathwa v. Ashcroft, 390 F.3d 551, 554 (8th Cir.2004).

Kimumwe also testified that on various occasions while in Zimbabwe, local authorities harassed him by chasing him and making disparaging remarks, neighbors spat on him, kicked him, and threw stones at him, and that on one occasion, he was beaten by villagers and shocked with an electric wire while on his way to visit a friend. Harassment by local authorities of the sort described, however, does not rise to the level of persecution. See Salkeld, 420 F.3d at 808-09.

Actions by private parties are not attributable to the government, absent a showing that the harm is inflicted by persons that the government is unwilling or unable to control, see Valioukevitch v. INS, 251 F.3d 747, 749 (8th Cir. 2001), and we conclude that the IJ reasonably declined to find on this record that the incidents involving neighbors and villagers described by Kimumwe amounted to persecution by official authorities. Kimumwe also asserts that he has a well-founded fear of future persecution because of the announced hostility of the Zimbabwean government to homosexuality.

As the IJ observed, however, Kimumwe’s only encounter with police occurred when he was accused of coercing another student to participate in sexual activity, and the police eventually provided him with a document that assisted in avoiding future harassment by local authorities.

Although the government has stated its disapproval of homosexuality and espoused harsh anti-homosexual rhetoric, “persecution is an extreme concept,” typically requiring the infliction or threat of death, torture, or injury to one’s person or freedom, Salkeld, 420 F.3d at 808-09, and the evidence here did not compel a finding that a homosexual returned to Zimbabwe has a well-founded fear that he would be subjected to such serious mistreatment.

While the State Department’s Country Report on Human Rights Practices for 2001 noted “numerous, serious abuses” by the government, it did so in the context of a government-sanctioned campaign that targeted political opposition, not persons of homosexual status. (R. 215). Thus, assuming that Kimumwe is a member of a “particular social group,” the IJ reasonably concluded that he did not have a well-founded fear of persecution on that basis.

Because Kimumwe failed to satisfy the burden of proof on his asylum claim, his claims for withholding of removal and for protection under the CAT (which is also based on his asserted homosexual status) fail as well. Regalado-Garda v. INS, 305 F.3d 784, 788 (8th Cir. 2002); Samedov v. Gonzales, 422 F.3d 704, 708 (8th Cir.2005). We decline to consider Kimumwe’s contentions that he was denied due process in the hearing before the Immigration Judge, because he failed to present those issues in an appeal to the BIA. 8 U.S.C. § 1252(d)(1); Etchur-Njang v. Gonzales, 403 F.3d 577, 583-84 (8th Cir.2005).

The petition for review is denied.