Kabwe v. Garland ( 2023 )

20-2799
Kabwe v. Garland
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order
filed on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a
document filed with this court, a party must cite either the Federal Appendix or an
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must serve a copy of it on any party not represented by counsel.
1 At a stated term of the United States Court of Appeals for the Second Circuit,
2 held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
3 City of New York, on the 2nd day of August, two thousand twenty-three.
4
5 PRESENT: Steven J. Menashi,
6 Myrna Pérez,
7 Alison J. Nathan,
8 Circuit Judges.
9 ____________________________________________
10 NATHAN BANZA KABWE,
11 Petitioner,
12 v. No. 20-2799
13 MERRICK B. GARLAND,
14 UNITED STATES ATTORNEY GENERAL,
15 Respondent.
16 ____________________________________________
17 For Petitioner: Robert F. Graziano, Tonawanda, N.Y.
1 For Respondent: Brian M. Boynton, Acting Assistant
2 Attorney General; Liza S. Murcia, Senior
3 Litigation Counsel; Jennifer A. Bowen, Trial
4 Attorney, Office of Immigration Litigation,
5 United States Department of Justice,
6 Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a Board of
Immigration Appeals (“BIA”) decision, it is hereby ORDERED, ADJUDGED, and
DECREED that the petition for review is GRANTED.
Petitioner Nathan Banza Kabwe, a citizen of the Democratic Republic of the
Congo (“DRC”), seeks review of a July 27, 2020 decision of the BIA affirming a
June 6, 2018 decision of an Immigration Judge (“IJ”) denying his application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). In re Nathan Banza Kabwe, No. A206 718 102 (B.I.A. July 27, 2020), aff’g No.
A206 718 102 (Immigr. Ct. N.Y.C. June 6, 2018). We assume the parties’ familiarity
with the underlying facts and procedural history.
We have reviewed the IJ’s decision as supplemented by the BIA. See Yan
Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The applicable standards of
review are well established. “[T]he administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B). “Accordingly, we review the agency’s decision
for substantial evidence and must defer to the factfinder’s findings based on such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion. . . . By contrast, we review legal conclusions de novo.” Singh v. Garland,
11 F.4th 106, 113 (2d Cir. 2021) (internal quotation marks omitted).
Absent past persecution, an asylum applicant may establish eligibility by
demonstrating a well-founded fear of future persecution on account of a protected
ground. See 8 C.F.R. § 1208.13(b)(2); Kyaw Zwar Tun v. INS, 445 F.3d 554, 564 (2d
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Cir. 2006). An applicant must establish both a subjectively credible fear of
persecution and that the fear is objectively reasonable. Kyaw Zwar Tun, 445 F.3d at
564. An applicant may meet this burden by demonstrating that he “would be
singled out individually for persecution” or that “there is a pattern or practice” of
persecuting “persons similarly situated.” 8 C.F.R. § 1208.13(b)(2)(iii); Kyaw Zwar
Tun, 445 F.3d at 564.
Kabwe appeared pro se at his hearing before the IJ. He was found credible
and alleged that he was a member of the Bundu Día Kongo (“BDK”) organization
and that members of the BDK are targeted by DRC authorities for arrest, torture,
and killing. Kabwe does not challenge the agency’s finding that he failed to
establish past persecution. Instead, he argues that the agency erred in failing to
consider his claim that there is a pattern or practice of persecution of members of
the BDK by DRC authorities. We agree.
Kabwe explained at his hearing that the “authorities of the DRC . . . are
looking for the [BDK] members to arrest them, and to torture them, and to kill
some of them, or jail some of them.” Cert. Admin. R. 176. He said that the DRC
had arrested the BDK’s spiritual leader, that the leader escaped, and that the
authorities were hunting for the leader and his followers. Id. He also submitted
corroborating evidence of those alleged facts: a news report detailing a
government raid at the BDK leader’s home as well as government killings at BDK
protests. Id. at 243-45. That testimony and evidence together were sufficient to
raise a pattern or practice claim. Because Kabwe was pro se, the IJ was required to
construe his testimony regarding the treatment of the BDK by DRC authorities as
at least implicitly raising such a claim. See Adams v. Holder, 692 F.3d 91, 96 n.2 (2d
Cir. 2012) (“Even if [the petitioner] did not raise this argument explicitly, he
implicitly made the point.”); Foster v. INS, 376 F.3d 75, 78 (2d Cir. 2004)
(“generously construing . . . pro se submissions” to the agency). The agency erred
insofar as it decided that Kabwe’s testimony did not raise a pattern or practice
claim before the IJ and that he was barred from raising a pattern or practice claim
on appeal.
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Because the agency did not consider a pattern or practice claim that the
petitioner raised, the “ordinary remand rule” requires us to remand for the agency
to consider the claim in the first instance. Mufied v. Mukasey, 508 F.3d 88, 91-92 (2d
Cir. 2007) (quoting Gonzales v. Thomas, 547 U.S. 183, 187 (2006)) (applying the
ordinary remand rule to a pattern or practice claim that the IJ and the BIA did not
address); accord Gonzales, 547 U.S. at 186 (noting that the ordinary remand rule
applies when a disputed issue “requires determining the facts and deciding
whether the facts as found fall within a statutory term”). A pattern or practice
claim involves factual issues that must be addressed by the agency in the first
instance. Here, the “[f]acts must be carefully sifted in context to ascertain whether
there is a sufficient political element to the alleged persecution” as to make out a
claim for asylum or whether the DRC’s actions toward the BDK represent only the
“enforcement of generally applicable law.” Jin Jin Long v. Holder, 620 F.3d 162, 166-
67 (2d Cir. 2010). And because the agency did not rely on alternative grounds for
denying the asylum claim, we cannot say that remand would be futile. See Gurung
v. Barr, 929 F.3d 56, 62 (2d Cir. 2019); Cao He Lin v. DOJ, 428 F.3d 391, 400 (2d Cir.
2005) (“To assume a hypothetical basis for the IJ’s determination, even one based
in the record, would usurp her role.”).
We remand as to all three forms of relief because the agency denied
withholding of removal and CAT relief on the same factual predicate as Kabwe’s
asylum claim.
For the foregoing reasons, the petition for review is GRANTED, the BIA’s
decision is VACATED, and the case is REMANDED to the BIA for further
proceedings. All pending motions and applications are DENIED and stays
VACATED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
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