Mulanga v. Atty Gen USA ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-14-2003
Mulanga v. Atty Gen USA
Precedential or Non-Precedential: Precedential
Docket No. 02-3332
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PRECEDENTIAL
Filed November 14, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-3332
BEATRICE MULANGA,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States of America,
Respondent
On Petition for Review of an Order
of the Board of Immigration Appeals
INS No. A78-527-646
Argued: July 21, 2003
Before: ALITO and FUENTES, Circuit Judges
and SURRICK,* District Judge
(Opinion Filed: November 14, 2003)
THOMAS W. VANASSE, ESQ.
(Argued)
New York Association for
New Americans
17 Battery Place, 9th Floor
ATTORNEY FOR PETITIONER
* The Honorable R. Barclay Surrick, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
2
ROBERT D. MCCALLUM, JR.
Assistant Attorney General
Civil Division
ERNESTO H. MOLINA, JR.
Senior Litigation Counsel
ANTHONY C. PAYNE (Argued)
Trial Attorney
Office of Immigration Litigation
Civil Division
United States Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
ATTORNEYS FOR RESPONDENT
Nadine K. Wettstein, Esq.
American Immigration Law
Foundation
918 F Street, N.W.
6th Floor
Washington, D.C. 20004
ATTORNEY FOR
AMICUS-APPELLANT
OPINION OF THE COURT
FUENTES, Circuit Judge:
Beatrice Mulanga, a citizen of the Democratic Republic of
the Congo, petitions for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing her appeal from the
Immigration Judge’s (“IJ”) denial of her application for
asylum and withholding of removal. Mulanga argues that
the IJ erred by unreasonably requiring her to provide
evidence corroborating her husband’s political affiliation
and by discrediting two aspects of her account of
persecution. She also asserts that the BIA violated her due
process rights and INS regulations by summarily affirming
the IJ’s decision.1 The government counters that the IJ’s
1. The American Immigration Law Foundation filed a brief as Amicus
Curiae for Mulanga urging the Court to invalidate the summary
affirmance procedure used by the BIA in this case. Because we remand
for other reasons, we do not address the arguments concerning the
summary affirmance procedure.
3
decision is supported by substantial evidence and that the
BIA properly affirmed without opinion the IJ’s
determination that Mulanga failed to satisfy her burden of
establishing eligibility for asylum and withholding of
removal. We conclude that: (1) petitioner should have been
given an opportunity to provide corroborating
documentation of her husband’s political affiliation or, if
she could not produce such evidence, an opportunity to
explain her inability to do so; and (2) the decision is not
supported by substantial evidence. We therefore grant the
petition for review.
I. Factual and Procedural Background
A. Factual Background
Except as otherwise noted, the following account is based
on two sources. First, the events relating specifically to
Mulanga and her family are based on Mulanga’s testimony
(the credibility of which is disputed). Second, information
about political events and conditions in the Democratic
Republic of Congo (DRC) is taken from the U.S. State
Department Reports which she introduced into evidence.
Mrs. Mulanga was born on June 4, 1959, in Zaire, now
called the Democratic Republic of the Congo (“DRC”). In
1978, she married Celestin Kabamba, a high school
teacher. Their seven children were born in Kinshasa
between August 1978, and January 1992. Mrs. Mulanga’s
husband was a member of the opposition party, the Union
for Democracy and Social Progress (“UDPS”). According to
Mrs. Mulanga, the UDPS fought the dictatorship in order to
establish a democracy. She testified that her husband
worked “for the young of the party, trying to get them
together. He was the local person . . . His primary function
was to work with the young people and to help them how
to function within the party. And then, to help them not to
be afraid what’s going around.” A.R. at 154. Her own
involvement with the UDPS consisted of taking part in the
group’s protest rallies. Also, she often cooked for the party
members.
On April 4, 1995, security agents of the government of
4
Mobutu Sese Seiko2 arrested her husband because of his
political beliefs. Mrs. Mulanga testified that he was
detained in a “house of the government” for two days and
beaten badly, which left “his face puffed and a lot of scars
on his arms.” Id. at 155-56. He was released when
representatives from the UDPS pleaded with the
government to release him.
In June 1995, Mrs. Mulanga participated in a protest
march organized by UDPS in Kinshasa, the purpose of
which was “to fight the dictatorship” and “the restoration of
democracy.” Id. at 157. One of Mobutu’s soldiers who was
trying to keep the march from taking place shot Mulanga in
the chest. She fell unconscious and was taken to the Clinic
Ngaliema, where she stayed for three and a half weeks.
Mrs. Mulanga supplied a medical certificate from Dr.
Okenge, who treated her at the Clinic shortly after the
shooting. An INS medical report confirms that Mrs.
Mulanga was shot, noting that she sustained a second
degree gunshot wound.
In 1997, a political change occurred. Laurent-Desire
Kabila forcibly took over Zaire, thereby ending the regime of
Mobutu. He renamed the country the Democratic Republic
of the Congo. See id. at 333. He ruled by decree, without
the constraint of a constitution, and formed “People’s Power
Committees” to monitor activities of citizens at their
neighborhoods, schools, and workplaces. Id. According to
the 2000 State Department Report, his government was
responsible for human rights abuses, including
“extrajudicial killings, disappearances, torture, beating,
rape and other abuses.” Id. at 334. Also, the judiciary was
corrupt and it permitted arbitrary arrests and detentions to
become common. See id. at 333, 341. “Security forces . . .
used arbitrary arrest to intimidate outspoken opponents
and journalists. Charges rarely were filed, and the political
motivation for such detentions was obscure . . . [d]etention
without charge [was] a frequent problem under the Kabila
administration . . . [t]here were many secret or unofficial
detention centers in Kinshasa. . . .” Id. at 341.
2. The DRC became independent from Belgian rule in 1960. Mobutu Sese
Seiko ruled the country from 1965 to 1997, when Laurent-Desire Kabila
came to power.
5
After Laurent Kabila came to power in 1997, petitioner
and her husband continued to have problems because of
their political beliefs. During 1998, security forces would
often come to their home “to arrest [Mr. Mulanga] because
of his political beliefs” and “to get him to get out of the
political scene.” Id. at 159. Mrs. Mulanga testified that the
Laurent Kabila government was “looking for him because of
his politics, and he was anti-government.” Id. at 183. Mr.
Mulanga often fled to friends’ houses when the authorities
came looking for him.
In May 1998, petitioner went to a local clinic because she
was having problems with her chest. During her absence,
her three youngest children stayed at the local church
while her husband stayed at home with the four oldest
children. When she returned home, neighbors told her that
people had come to the house looking for her husband and
that he and the children who were with him ran and
jumped the fence in the back of the house. She waited in
her home for her husband and children to return. They
never did. She has not seen her husband or children since
that day and does not know their whereabouts.
Two or three days later, Kabila security agents came to
Mulanga’s home at 1:00 in the morning, showed her their
cards, and demanded to know the whereabouts of her
husband. They told her that “if you don’t show us where
your husband is, that’s going to be a problem.” Id. at 166.
According to Mrs. Mulanga, they said her husband had
“been doing a bad thing . . . [a]nd they said that, you
people, you’re anti-Kabila doing the politic here.” Id. The
security agents stayed in petitioner’s home for about 15-20
minutes, during which time they taped her mouth and beat
her up while saying “you’ve got to tell us the whereabouts.”
Id. at 167. They then pushed her into their car and drove
about an hour to the government house in Kinsuca, where
seven other people were being held. She was held at the
house for 6 days, during which she was given no food,
repeatedly asked the whereabouts of her husband, beaten,
and pulled to the ground by her hair.
On the sixth day, Mulanga escaped from the government
house with the help of a Kabila soldier named Alfonse, who
was a friend of hers and of her husband. She testified that
6
Alfonse “came there and they called my name and he
helped me to get out of there.” Id. at 168. Alfonse brought
petitioner to the Zaire River (Congo River), where she
boarded a boat along with two other people headed for
Brazzaville in the Republic of the Congo, a separate
country. She entered Brazzaville and remained there from
June to November 1998 with Marie Jean Ngalulu, a woman
from her village.
While Mulanga was in Brazzaville, civil war broke out.
See id. at 239. As a result, there was destruction and
looting in much of the southern part of the country,
“particularly in Brazzaville, where more than one-third of
the country’s population normally resides. Fighting and
heavy looting led to the destruction of many southern
towns, and much of Brazzaville, the capital. An estimated
800,000 civilians, approximately one-third of the country’s
estimated population of 3 million, were displaced.” Id. As
petitioner and her friend ran, shots were fired. Her friend
was hit by a bullet. When she noticed her friend on the
ground, not moving, Mulanga kept running for her life. She
ended up at the Bethel church where she was taken in and
allowed to stay for 3 years.
While Mulanga was at the Bethel church another political
change occurred in her former country. On January 16,
2001, Laurent Kabila was assassinated by one of his
guards. His son, Joseph Kabila, took control of the
government of the DRC 10 days later. See id. at 212. As his
father had before him, Joseph Kabila ruled by decree and
without the constraint of a constitution. According to the
State Department, security agents monitored mail passing
through both private carriers and the DRC’s “dysfunctional”
state mailing system and there was a widespread belief that
the government monitored telephone communications. See
id. at 224. Although there were fewer reported cases of
human rights abuses, “[i]n general security forces
committed these abuses with impunity. Prison conditions
remained harsh and life threatening. Security forces
continued to arbitrarily arrest and detain citizens; however,
the number of such cases decreased. Prolonged pretrial
detention remained a problem, and dozens of suspects
remained in detention without formal charges filed, without
7
any evidence presented against them, and without an
opportunity to defend themselves in court.” Id. at 213. The
2001 State Department Report also indicates that “[t]he
Government operated 220 known prisons and other places
of detention, and in all such facilities, conditions remained
harsh and life threatening; there reportedly were many
other secret or informal detention centers.” Id. at 219.
Other abuses which continued during the Joseph Kabila
regime were also noted by the 2001 State Department
Report:
There was no known action taken against the members
of the security forces responsible for torturing, beating,
or otherwise abusing the persons in the following cases
from 2000: The November assault and shooting of
Athanese Matenda Kyelu; the November beating of 10
students; the October beating and torture of 2 military
court officials; the October detention and beatings of
7 members of the opposition Union for Democracy
and Social Progress (UDPS); the May beating to death
of Mukoko and the torture of his family; the May killing
of Nsaiala Nkia Mbiyavange, beating of his parents,
and rape of his sister; the April beating of Koyagialo
Ahonzim Wasana; the April torture of Freddy Lomboto
wa Lomboto; the March public raping of a young girl;
the March beating of the president of the Front for the
Survival of Democracy (FSD); the March beating and
torture of 2 refugees; the February torture and
harassment of residents of villages surrounding Dingi-
Dingi; the February torture and beating of Zuki Phu
Kuta Dieudonne, a reporter for the newspaper Palme
d’Or and president of the human rights NGO Justice
Sans Frontiere; the January torture of Freddy Loske
Lisumbu, editor of the newspaper La Libre Afrique; the
January death by torture of Iyela Mokolo; the January
torture of UDPS activist Crispin Ipondo Banda; the
January beating of Christophe Kalonji Ntambwe and
his wife; and the January torture of Albert Angbana
Mate by the ANR.
Id. at 218 (emphasis added). Also, according to the State
Department, although the government adopted a law
liberalizing political activity, 5 UDPS members were
8
arrested after they submitted a request to hold a public
rally without submitting party registration papers. “They
were charged with assault against state security, incitement
to revolt, and sedition.” Id. at 220. Needless to say, at least
through 2001, government agents continued to target
members of the UDPS in a crackdown on political activity.
Petitioner testified that she was afraid to return to the
DRC after Joseph Kabila took control of the government in
2001 because “it’s the same thing, father and son.” Id. at
180. In June 2001, after a family member obtained a
Canadian passport for her, Mrs. Mulanga fled Brazzaville
“because of the violent things that were going there at the
time.” Id. at 175. She headed for Abidjan, Ivory Coast,
where she remained for one month. About a month later,
she arrived in the United States. Petitioner testified before
the IJ that she was afraid to go back home “[b]ecause
[Kabila’s security forces] see me as anti-Kabila and I have
never shown them the whereabouts of my husband. They
say I’m involved in the politics, so they will do those bad
things.” Id. at 177.
In addition to U.S. State Department Reports, petitioner
tendered documentary evidence in support of her account.
As previously stated, petitioner obtained and introduced
into evidence a medical certificate from Dr. Okenge, in
which he stated that petitioner came into the emergency
room in 1995 and that “[w]hen she arrived, the patient had
a large bullet wound which had come very close to the left
side of the chest cavity.” Id. at 285. An INS medical report
also confirms that petitioner sustained a second degree
gunshot wound. See id. at 326. Additionally, petitioner
introduced into evidence a letter from her cousin, Baidouin
Mwanza Ngoie Jezu Ntumba, in which he confirmed that
petitioner had been shot during a demonstration and that
security forces were searching for her husband when they
detained her. See id. at 275. Petitioner also supplied her
birth and marriage certificates and offered to introduce her
children’s birth certificates. See id. at 104.3 Petitioner also
3. In his closing statement, Mulanga’s counsel offered to introduce the
birth certificates into evidence, see id. at 203, after the IJ expressed
great skepticism as to whether petitioner had children. See id. at 189
(“Ma’am, do you have these children? Are they a figment of your
imagination? Do they really exist?”). It appears that, ultimately, the birth
certificates were not included as part of the record. See id. at 210.
9
introduced into the record reports by Amnesty
International, Human Rights Watch, and other
organizations, describing human rights abuses in the DRC
and the Republic of the Congo.
B. Procedural Background
Petitioner arrived at John F. Kennedy International
Airport on July 9, 2001. Thereafter, she was detained in the
Elizabeth Detention Center in Elizabeth, New Jersey.4 On
July 24, 2001, an INS asylum officer found her to have
demonstrated a credible fear of persecution and torture and
issued her a Notice to Appear. See id. at 449. Petitioner
admitted to the Immigration Judge that she attempted to
enter the United States with a fraudulent Canadian
Passport, see id. at 82, and thereafter submitted to the
Immigration Court her application for asylum pursuant to
§ 208 of Immigration and Nationality Act (“INA”),
withholding of removal pursuant to INA § 241(b)(3), and for
relief under the Convention Against Torture.5 An evidentiary
hearing on the merits of petitioner’s application was held on
March 20, 2002.
On April 4, 2002, the IJ denied petitioner’s application
and ordered that she be removed to the DRC from the
United States pursuant to the charges in the Notice to
Appear. A.R. at 65. Specifically, the IJ held that she had
failed to meet her burden of proving persecution or a well-
founded fear of persecution on account of her husband’s
political opinions being attributed to her. The IJ found that
there was no record evidence showing that Mr. Mulanga
was a UDPS member or that he was a vocal opponent of the
government. The IJ also held that petitioner did not show
that the April 1995 beating of her husband was politically
motivated.
4. At oral argument, Mulanga’s counsel told the Court that Mrs. Mulanga
was paroled from detention due to a medical condition some time after
the removal proceedings before the IJ.
5. Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20
(1988), 1465 U.N.T.S. 85.
10
Additionally, the IJ questioned petitioner’s testimony on
two points. The IJ noted that petitioner asserted in her
airport statement that she did not know who shot her, but
later testified at her hearing that she was shot by one of
Mobutu’s soldiers. The IJ found “incredulous” petitioner’s
account of her escape from the government detention house
with the help of Alfonse, “question[ing] the ease with
[which] she ‘escaped’ ” and noted that no mention of Alfonse
was made in petitioner’s asylum application. Id. at 64. The
IJ also noted that petitioner had lived in the DRC from
1995 to 1998 with no incident. Based on the lack of
evidence that Mr. Mulanga’s 1995 arrest was politically
motivated, the supposed inconsistency between the airport
statement and petitioner’s testimony, the IJ’s rejection of
petitioner’s account of her escape with Alfonse, and the
relative calm experienced by Mulanga between 1995 and
1998, the IJ held “this Court is not convinced that these
incidents amount to past persecution of the respondent.”
Id.
Finally, the IJ found that petitioner did not establish a
well-founded fear of persecution if returned to the DRC
because she did not testify to any incidents occurring after
1998 and had no knowledge of her husband’s whereabouts
or political activities. The IJ observed that there was no
reason to believe that the new regime in power in the DRC
was actively pursuing petitioner.
Petitioner timely filed a Notice of Appeal to the BIA. On
July 26, 2002, the BIA affirmed, without opinion, the
Immigration Judge’s decision. On August 23, 2002,
petitioner filed a Petition for Review and Motion for Stay of
Removal. This Court granted petitioner’s Motion for Stay of
Removal on September 17, 2002.
II. Jurisdiction and Standard of Review
This Court has jurisdiction to review final orders of
removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v.
Ashcroft, 239 F.3d 542, 548 (3d Cir. 2001). Where, as here,
the BIA defers to the decision of the IJ, we review the
decision of the IJ. See id. at 549 n. 2 (citation omitted).
11
Whether an asylum applicant has demonstrated past
persecution or a well-founded fear of future persecution is
a factual question, which we review under the substantial
evidence standard. See Gao v. Ashcroft, 299 F.3d 266, 272
(3d Cir. 2002). Adverse credibility determinations are also
reviewed for substantial evidence. See id. “We will uphold
the findings of the BIA to the extent that they are supported
by reasonable, substantial and probative evidence on the
record considered as a whole, and will reverse those
findings only if there is evidence so compelling that no
reasonable factfinder could conclude as the BIA did.”
Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003)
(citing Gao, 299 F.3d at 272). See also Zubeda v. Ashcroft,
333 F.3d 463, 471 (3d Cir. 2003).
III. Legal Standards
The basic principles underlying Mulanga’s claim are well
established. The Attorney General has the discretionary
power to grant asylum to an alien who qualifies as a
refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). See
8 U.S.C. § 1158(b)(1). A refugee is “any person who is
outside any country of such person’s nationality . . . and
who is unable or unwilling to return to, and is unable or
unwilling to avail himself or herself of the protection of, that
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). As previously stated,
Mulanga appeals the denial of her application for asylum,
withholding of removal, and relief under the United Nations
Convention Against Torture.
To establish eligibility for asylum based on past
persecution, an asylum applicant must show: (1) one or
more incidents rising to the level of persecution; (2) that is
“on account of ” one of the statutorily-protected grounds;
and (3) is committed either by the government or by forces
that the government is either unable or unwilling to control.
Gao, 299 F.3d at 272 (citing Navas v. INS, 217 F.3d 646,
655 (9th Cir. 2000)). A showing of past persecution gives
rise to a rebuttable presumption of a well-founded fear of
future persecution. See 8 C.F.R. § 208.13(b)(1);
12
Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d Cir. 2003).
“That presumption can be rebutted if the INS establishes by
a preponderance of the evidence that the applicant could
reasonably avoid persecution by relocating to another part
of his or her country or that conditions in the applicant’s
country have changed so as to make his or her fear no
longer reasonable.” Id. at n.3 (citations omitted). “Where
past persecution is not established, ‘[a]n applicant can
demonstrate that she has a well-founded fear of future
persecution by showing that she has a genuine fear, and
that a reasonable person in her circumstances would fear
persecution if returned to her native country.’ ”
Abdulrahman, 330 F.3d at 592 (citing Gao, 299 F.3d at
272). Once an asylum applicant shows that “[s/]he has a
subjective fear of persecution that is supported by objective
evidence that persecution is a reasonable possibility[,]” the
Attorney General may, but is not required to, grant asylum.
Chang v. INS, 119 F.3d 1055, 1066 (3d Cir. 1997) (citation
omitted).
Asylum applications constitute simultaneous applications
for mandatory withholding of removal. See 8 C.F.R.
§ 208.3(b). In order to qualify for withholding of removal, an
applicant must show a “clear probability” that his or her life
or freedom would be threatened if s/he is deported. Lin v.
INS, 238 F.3d 239, 244 (3d Cir. 2001) (citing Chang, 119
F.3d at 1066). “The question under that standard is
whether it is more likely than not that the alien would be
subject to persecution.” INS v. Stevic, 467 U.S. 407, 424
(1984). The standard for eligibility for withholding of
removal is more exacting than the asylum standard. See
Chang, 119 F.3d at 1066. “Thus, if an alien fails to
establish the well-founded fear of persecution required for
a grant of asylum, he or she will, by definition, have failed
to establish the clear probability of persecution” standard
for withholding of removal. Zubeda, 333 F.3d at 469-70(citation omitted).
In order to obtain relief under the Convention Against
Torture, an applicant must establish “that it is more likely
than not that he or she would be tortured if removed to the
proposed country of removal.” Sevoian v. Ashcroft, 290 F.3d
166, 175 (3d Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)).
13
Once an applicant establishes a claim for relief under the
Convention Against Torture, s/he may not be removed to
the country where the torture occurred. Zubeda, 333 F.3d
at 472.
The burden of establishing eligibility for asylum,
withholding of removal under INA § 241(b)(3), and relief and
the Convention Against Torture is on the applicant.6 “The
testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration.” 8
C.F.R. §§ 208.13(a), 208.16(b), (c)(2). However, as discussed
in greater detail below, otherwise-credible applicants may
be required, under certain circumstances, to provide
corroborating evidence in order to meet their burden of
proof. See Abdulai, 239 F.3d at 554.
IV. Analysis
A.
The parties’ dispute in this case concerns the IJ’s
assessment of the sufficiency of the evidence presented by
Mrs. Mulanga during her removal proceedings. Her primary
contention is that the IJ unreasonably required her to
provide corroborating documentation of her husband’s
political party affiliation in support of her claims of past
persecution on account of imputed political opinion and
membership in a particular social group.7 Mulanga insists
6. See 8 C.F.R. § 208.13(a) (“The burden of proof is on the applicant for
asylum to establish that he or she is a refugee as defined in section
101(a)(42) of the Act.”); 8 C.F.R. § 208.16(b) (“The burden of proof is on
the applicant for withholding of removal under section 241(b)(3) of the
Act to establish that his or her life or freedom would be threatened in the
proposed country of removal on account of race, religion, nationality,
membership in a particular social group, or political opinion.”); 8 C.F.R.
§ 208.16(c)(2) (“The burden of proof is on the applicant for withholding of
removal under this paragraph to establish that it is more likely than not
that he or she would be tortured if removed to the proposed country of
removal.”).
7. We note that an applicant can establish eligibility for asylum or
withholding of removal based on persecution on account of either a
political opinion s/he actually holds or on the basis of one imputed to
him or her, whether correctly or incorrectly, by a foreign government. See
Balasubramanrim, 143 F.3d at 164 n. 10.
14
that the IJ’s corroboration requirement together with the
IJ’s disbelief of Mulanga’s escape from the government
house and her account of her shooting resulted in findings
not supported by substantial evidence in the record.
In Abdulai v. Ashcroft, we observed that “[t]he INA is
completely silent as to whether, when it is reasonable to
expect corroborating evidence, an otherwise-credible
applicant who neither produces such corroboration nor
adequately explains his or her failure to do so may be
deemed to have failed to meet his or her burden of proof.”
239 F.3d at 552. We explained that “[s]aying that
something may be enough is not the same as saying it is
always enough [and that] . . . in fact, the most natural
reading of the word ‘may’ [in the context of 8 C.F.R.
§§ 208.13(a) and 208.16(b)] is that credible testimony is
neither per se sufficient nor per se insufficient. In other
words, ‘it depends.’ ” Id. (emphasis in original). Applying
principles of Chevron8 deference, we upheld in Abdulai the
corroboration rule set out in In re S-M-J, Interim Decision
3303 (BIA 1997), and we formulated a three-part inquiry:
(1) an identification of facts for which “it is reasonable to
expect corroboration,” (2) an inquiry as to whether the
applicant has provided information corroborating those
facts; and, if he or she has not, (3) an analysis of whether
an applicant has adequately explained why s/he was
unable to do so. Abdulai, 239 F.3d at 554.9
8. Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. 467 U.S. 837,
843 (1984) (When reviewing “an agency’s construction of the statute
which it administers . . . if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the
agency’s answer is based on a permissible construction of the statute.”).
9. In S-M-J-, the BIA held that:
Unreasonable demands are not placed on an asylum applicant to
present evidence to corroborate particular experiences (e.g.,
corroboration from the persecutor). However, where it is reasonable
to expect corroborating evidence for certain alleged facts pertaining
to the specifics of an applicant’s claim, such evidence should be
provided . . . If the applicant does not present such information, an
explanation should be given as to why such information was not
presented . . . The absence of such corroborating evidence can lead
to a finding that an applicant has failed to meet her burden of proof.
21 I. & N. Dec. 722, 725-26.
15
In Qui v. Ashcroft, the court noted that before rejecting
an applicant’s petition for lack of sufficient corroboration,
“the adjudicator must (a) identify the particular pieces of
missing, relevant documentation, and (b) show that the
documentation at issue was reasonably available to the
petitioner.” 329 F.3d 140, 153 (2d Cir. 2003) (citing Diallo
v. INS, 232 F.3d 279, 285-90 (2d Cir. 2000)). The Second
Circuit also cautioned that “[u]nless the BIA anchors its
demands for corroboration to evidence which indicates
what the petitioner can reasonably be expected to provide,
there is a serious risk that unreasonable demands will
inadvertently be made.” Id. Additionally, the Court in Qui
noted that the requirement that an adjudicator support his
or her demand for corroborative evidence with a reasoned
explanation that conforms to the actual conditions in the
applicant’s former country of residence “constitutes one
small, but crucial, defense against potentially mistaken,
culturally based assumptions about the existence and
availability of documents.” Id. at 154.
In addition to laying the foundation for the three-part
corroboration requirement, the BIA has commented on the
relationship between the burden of proof and the role of the
IJ in deportation hearings. In S-M-J-, the BIA opened its
analysis with a discussion of the unique nature of such
proceedings. The BIA explained:
Although we recognize that the burden of proof in
asylum and withholding of deportation cases is on the
applicant, we do have certain obligations under
international law to extend refuge to those who qualify
for such relief. See United Nations Convention Relating
to the Status of Refugees, July 5, 1951, 189 U.N.T.S.
150. Congress incorporated the international obligation
into domestic United States law when it enacted the
withholding of deportation provision of the Refugee Act
of 1980, Pub. L. No. 96-212, 94 Stat. 102, prohibiting
the refoulement of refugees. Going beyond the
refoulement provision, Congress also established
asylum as a discretionary form of relief for those who
could meet a lesser standard of proof. See section 208
of the Immigration and Nationality Act, 8 U.S.C. § 1158(1994). Because this Board, the Immigration Judges,
16
and the Immigration and Naturalization Service are all
bound to uphold this law, we all bear the responsibility
of ensuring that refugee protection is provided where
such protection is warranted by the circumstances of
an asylum applicant’s claim.
****
Although the burden of proof in establishing a claim
is on the applicant, the Service and the Immigration
Judge have a role in introducing evidence into the
record.
21 I. & N. Dec. at 723-26. Thus, asylum and withholding of
removal cases are different from other types of cases
because, while the burden of proof is borne by the
applicant, the IJ and the INS have a responsibility to make
sure that qualified applicants are provided refuge in
accordance with the obligations imposed by international
law. As we explained in Senathirajah v. INS, “[t]he
procedures for requesting asylum and withholding of
deportation are not a search for a justification to deport.
Justice requires that an applicant for asylum be given a
meaningful opportunity to establish his or her claim.” 157
F.3d 210, 221 (3d Cir. 1998).
Against this background, we believe the IJ’s findings and
conclusions regarding corroboration are not supported by
substantial evidence in the record. In the first instance we
note that the IJ and counsel for petitioner engaged in a
colloquy about the documents that would be presented in
support of Mulanga’s case. Counsel represented that
attempts were being made to obtain the birth certificates of
Mulanga and her seven children, a marriage certificate, and
a doctor’s certificate with the help of Andre Kalanzo, an
“unofficial representative” to the United Nations from the
UDPS party. A.R. at 99-100. When counsel told the IJ that
Mr. Kalanzo was in the United States and would be
obtaining the documents through a contact person in the
DRC, the IJ asked if this person was going to send the birth
and marriage certificates and asked that he submit an
affidavit in order to establish chain of custody. See id. at
113-15. The IJ also asked counsel to obtain evidence, such
as an affidavit, from the church group with which Mulanga
17
sought refuge in Brazzaville and to find out whether
Mulanga had family in Canada, where she initially wanted
to go. See id. at 115.
Mulanga provided most of the documentation requested
by the IJ. With the help of her cousin, she was able to
supply her marriage and birth certificates.10 She also came
forward with a medical certificate from the doctor who
treated her for her gunshot wound and an INS medical
report confirming that she had sustained a second degree
gunshot wound. Additionally, her cousin sent a letter
confirming that (1) Mulanga was shot in the chest during a
demonstration which Mobutu’s security forces were trying
to stop, (2) security forces “got their hands on her” while
searching for her husband, (3) she managed to escape to
Brazzaville, and (4) he thought that Mr. Mulanga and the
children were dead. Id. at 275. Mulanga also supplied
country condition reports for both the Democratic Republic
of the Congo and the Republic of the Congo, which
document flagrant human rights violations and corroborate
her assertion that UDPS members are persecuted for their
political opinions. This evidentiary showing is consistent
with S-M-J-’s recommendation that asylum applicants
provide country condition reports and documentation in
support of facts that are central to their claims, such as
evidence of place of birth and medical treatment. 21 I. & N.
Dec. at 725.
However, despite the citation of Matter of S-M-J- in the
IJ’s decision, she did not apply its standards to the facts of
this case. The IJ identified in her decision facts for which
corroboration was sought, i.e. Mr. Mulanga’s membership
in the UDPS and whether it motivated his 1995 arrest and
beating. However, prior to issuing the decision the IJ gave
no hint that Mulanga should have come forward with
evidence corroborating Mr. Mulanga’s membership in the
UDPS or with evidence that his arrest and beating in 1995
10. At oral argument, Mulanga’s counsel represented to the Court that
he asked Mr. Kalanzo, the UDPS representative to the United Nations,
for help obtaining documentation, but that Mr. Kalanzo left for South
Africa the day his help was requested, remained there for the next two
years, and was not in touch thereafter.
18
were politically motivated. First, in regard to Mr. Mulanga’s
political affiliation, the IJ commented that “there is no
documentary evidence in the [record] to indicate that the
respondent’s husband was in fact a member of the UDPS.
In addition, there is also no evidence that . . . he was a
vocal opponent of the government. . . .” Id. at 63. But the
IJ failed to explain what corroborating evidence would be
reasonably expected, and she failed to provide the applicant
with an opportunity to explain its absence. Mrs. Mulanga
testified that she was forcibly taken from her home by
government agents making it very unlikely that she was
able to leave with any documents concerning her husband’s
UDPS membership. In fact, the IJ may have even
discouraged Mrs. Mulanga from presenting such evidence.
As previously noted, the IJ requested that counsel present
numerous documents in connection with Mulanga’s
application. The applicant complied with most of the
requests or offered an explanation for why the requested
documents were not immediately available. At no time,
however, did the IJ even hint that she expected
documentary evidence of Mr. Mulanga’s political affiliation
or of his political activities. Thus, while the IJ requested
specific documents on some issues, she made no request of
Mrs. Mulanga for corroboration of her husband’s political
affiliation. Instead, the IJ rejected Mulanga’s testimony
when she failed to produce that corroboration.
It seems all the more unreasonable to require
corroboration given that Mulanga had been away from her
home for a four-year period before her hearing and she had
been in INS detention since her arrival in New York in July
2001. Even assuming that country conditions were
considered and the evidence was obtainable, the IJ erred by
not alerting Mulanga during the removal proceedings that
the absence of corroboration of Mr. Mulanga’s UDPS
membership would lead to the denial of her application,
thereby giving her an opportunity to explain her inability to
corroborate.
Next, in regard to Mrs. Mulanga’s testimony that her
husband was arrested and beaten by government security
forces in 1995, and that her husband’s mistreatment was
politically motivated, the IJ commented that “there is no
19
evidence to corroborate this assertion. This is nothing but
mere conjecture on her part.” App. at 64. But in her
opinion, the IJ failed to explain why Mulanga’s testimony
was “mere conjecture” or why it was lacking in credibility.
Indeed, if Mulanga provides documentation concerning her
husband’s political affiliation or a reasonable explanation
as to why such documentation cannot be provided, we do
not understand what additional documentary evidence Mrs.
Mulanga would be required to present to establish that her
husband was physically attacked by government agents for
his political beliefs. In fact, other than the evidence of
general country conditions, which clearly documented
numerous acts of political repression, Mrs. Mulanga was in
no position to document her story. In this regard, we have
previously observed the following:
It is obvious that one who escapes persecution in his
or her own land will rarely be in a position to bring
documentary evidence or other kinds of corroboration
to support a subsequent claim for asylum. It is equally
obvious that one who flees torture at home will rarely
have the foresight or means to do so in a manner that
will enhance the chance of prevailing in a subsequent
court battle in a foreign land. Common sense
establishes that it is escape and flight, not litigation
and corroboration, that is foremost in the mind of an
alien who comes to these shores fleeing detention,
torture and persecution.
Senathirajah, 157 F.3d at 215-16.
In any event, Mrs. Mulanga testified that security agents
arrested her husband while he was a member of the UDPS
and held him in a government house for two days where
they beat him leaving “his face puffed and a lot of scars on
his arms.” A.R. at 156. She also supplied a letter from her
cousin which confirmed that Mulanga had been shot during
a demonstration and that security forces were searching for
her husband. In these circumstances, the IJ’s credibility
determination, unless bolstered by an unreasonable failure
to provide documentation concerning her husband’s
political affiliation, cannot be regarded as supported by
substantial evidence.
20
B.
We believe it necessary to comment on other aspects of
this case. Mulanga asserts that the IJ erred by impugning
her credibility based on a discrepancy between her airport
interview and her testimony at the hearing. She also
asserts that the IJ erred by disbelieving her account of her
escape from detention with the help of a soldier named
Alfonse. Additionally, she asserts that she has established
a well-founded fear of persecution if returned to the DRC.
At the airport Mulanga said that she was unaware who
shot her, while at the hearing before the IJ, she testified
she was shot by one of the Mobutu soldiers. As an initial
matter, immaterial discrepancies between airport interviews
and subsequent testimony should not be used to make
adverse credibility determinations. See generally
Senathirajah v. INS, (“By placing too much reliance on an
airport interview . . . the INS seriously undermined the
reliability of the administrative process.”). See also
Balasubramanrim v. INS, 143 F.3d 157, 164 (3d Cir. 1998)
(inconsistencies between the airport statement and
petitioner’s testimony before the immigration judge held to
be insufficient to support the BIA’s finding that the
petitioner was not credible). In any case, the statements are
not necessarily inconsistent. Mrs. Mulanga stated at the
airport that she did not know who shot her. That is, she did
not know the name of the shooter. But, in her testimony,
she said it was a Mobutu soldier. These statements, taken
together, could mean that Mulanga knew that a Mobutu
soldier shot her but she could not identify that soldier by
name at the airport interview. In this context, the IJ’s use
of Mrs. Mulanga’s airport statement to impeach her
credibility is not supported by the record.
We also agree that the IJ’s explanation of her disbelief of
the manner in which Mulanga escaped from detention is
unsound.11 The IJ found testimony that Alfonse, a Kabila
soldier, helped her to escape “incredulous.” A.R. at 64. But
the IJ did not articulate a foundation for her disbelief other
11. The IJ noted “[t]hat . . . [Mulanga] was just able to, essentially, walk
out of her place of detention lacks common sense. This Court questions
the ease with [which] she ‘escaped.’ ” A.R. at 64.
21
than to say that Mulanga’s ability to walk away with a
government soldier “lacks common sense.” Id. Mrs.
Mulanga did explain at her hearing that Alfonse, a
government soldier, had been a friend of her husband’s.
She further explained that Alfonse spoke to the other
soldiers at the detention center and then he walked away
with her. If, as the State Department Reports indicate,
corruption is rampant in the military, this scenario is
plausible.
C.
An applicant for asylum must provide corroborating
evidence only when it would be reasonably expected. In this
case, the IJ denied Mrs. Mulanga relief in large part
because of the lack of documentary evidence indicating that
her husband was a member of the UDPS and that he was
a vocal opponent of the government of the DRC. The IJ,
however, failed to explain what type of documentation she
expected or required. As we have explained, Mulanga was
forcibly taken from her home and remained away from her
home for the four-year period before her hearing, and she
was therefore at a significant disadvantage in obtaining
corroboration. Additionally, the fact that the IJ requested,
through counsel, that Mulanga present a number of
corroborating documents but failed to include a request for
documentary evidence of Mr. Mulanga’s party membership
may have signaled to Mulanga that such corroboration was
not needed. In any case, the IJ failed to analyze whether
Mulanga had adequately explained why she was unable to
present corroborating evidence. The IJ also found
petitioner’s testimony as to her husband’s political activities
lacking. The IJ noted “[t]he respondent testified that her
husband was a local leader in charge of the young people
and ‘things like that.’ The respondent offered no further
activities that her husband was purportedly involved in and
[she] was unable to expand on the meaning of ‘things like
that.’ ” Id. at 63. We note, however, that Mulanga was not
asked to elaborate what she meant by “things like that.” We
also note that, in any event, Mulanga’s testimony was more
descriptive than the citation to “things like that” suggests.
She testified that her husband was the “local person . . .
22
[and that] [h]is primary function was to work with the
young people and to help them function within the party.”
Id. at 154.
We have also explained that Mulanga’s airport statement
regarding who shot her in 1995 was not inconsistent with
her testimony and that the IJ’s explanation of her disbelief
of Mulanga’s testimony concerning her escape from a
government house was unsound.
V. Conclusion
Accordingly, we will grant the petition for review, vacate
the BIA’s order, and remand this case to the BIA for
proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit