Jacques Ilunga-Kabamba v. Robert Wilkinson ( 2021 )

FILED
NOT FOR PUBLICATION
FEB 17 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUES ILUNGA ILUNGA- No. 19-70419
KABAMBA, AKA Ilunga-Kabamba
Jacques, AKA Jacques Kabamba, AKA Agency No. A096-143-587
Jacques I. Kabamba, AKA Jacques Ilunga
Kabamba, AKA Jacques Lunga Kabamba,
AKA Jacquis Ilunga Kabamba, AKA MEMORANDUM*
Jacquis Irunga Kabamba, AKA jaques
Kabamba,
Petitioner,
v.
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 5, 2021
Phoenix, Arizona
Before: W. FLETCHER, MILLER, and HUNSAKER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Jacques Ilunga-Kabamba (“Petitioner”) petitions for review of a decision by
the Board of Immigration Appeals (“BIA”) denying him asylum, withholding of
removal, and withholding or deferral of removal under the Convention Against
Torture (“CAT”).
Petitioner, a citizen of the Democratic Republic of the Congo (“DRC”),
immigrated to the United States at eighteen years old with derivative asylee status
through his father, Auguy Ilunga-Kabamba (“Auguy”). In 2015, Petitioner pled
guilty to and was sentenced for offenses including one count of Conspiracy to
Commit Possession of Marijuana for Sale, in violation of Ariz. Rev. Stat. §§
13-3401, 13-3405, 13-3405(A)(2), 13-3418, 13-701, 13-702, 13-1003, 13-801,
13-301, 13-302, 13-303, and 13-304. He was placed in removal proceedings, and
the Immigration Judge (“IJ”) denied relief. The BIA agreed, dismissing
Petitioner’s appeal.
1. Removability
Petitioner challenges the BIA’s conclusion that his Arizona conspiracy
conviction constituted an aggravated felony under 8 U.S.C. §§ 1101(a)(43)(B) and
(U). Because the BIA recognized the claim and addressed it on the merits, it is
exhausted. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th Cir. 2008).
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We apply the categorical approach to determine whether a prior conviction
constitutes an aggravated felony. Moncrieffe v. Holder, 569 U.S. 184, 190 (2013).
Petitioner argues that Arizona’s conspiracy statute, Ariz. Rev. Stat. § 13-1003(A),
is overbroad because Arizona permits conspiracy liability when the requisite overt
act is committed by either (a) a later-joining conspirator who was not part of the
initial “underlying” conspiracy, or (b) a non-conspirator. We disagree.
First, Arizona is not unusual in recognizing culpability for originating
conspirators even when overt acts are undertaken by later-joining conspirators.
See, e.g., Smith v. United States, 568 U.S. 106, 114 (2013) (“[A] defendant’s
membership in the conspiracy, and his responsibility for its acts, endures even if he
is entirely inactive after joining it.”); Pinkerton v. United States, 328 U.S. 640,
646–47 (1946) (“It is settled that an overt act of one partner may be the act of all
without any new agreement specifically directed to that act.” (internal citation and
quotation marks omitted)); United States v. Garrison, 888 F.3d 1057, 1064 (9th
Cir. 2018) (“[A] defendant need not have known all the conspirators, participated
in the conspiracy from its beginning, participated in all its enterprises, or known all
its details.” (internal citation and quotation marks omitted)); Marino v. United
States, 91 F.2d 691, 696 (9th Cir. 1937) (“[T]he joinder thereof by a new member
does not create a new conspiracy, does not change the status of the other
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conspirators, and the new member is as guilty as though he was an original
conspirator.” (internal citations and footnotes omitted)). Petitioner has not shown
that Arizona’s approach is different from the generic definition of conspiracy.
Second, while Arizona’s statute contemplates that a non-conspirator might
commit the intended offense conduct, it requires that at least one co-conspirator
commit an overt act. See Ariz. Rev. Stat. § 13-1003(A); State v. Simmons, 363
P.3d 120, 124 n.7 (Ariz. Ct. App. 2015) (“[I]t is essential that an overt act by one
or more of the conspirators to effect the object of the conspiracy be alleged and
proved.” (quoting State v. Olea, 678 P.2d 465, 479 (Ariz. Ct. App. 1983))). This is
not a basis for distinguishing Arizona law from generic conspiracy.
We asked the parties to address at oral argument whether Arizona law covers
unilateral conspiracy and is therefore overbroad under United States v. Brown, 879
F.3d 1043, 1048 (9th Cir. 2018). The BIA did not address that question in its
order. The government has moved to remand the case to allow the BIA to consider
that question in the first instance (Dkt. 41). We GRANT the government’s motion
and remand to the BIA on this question.
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2. Convention Against Torture
With respect to relief under CAT, we remand to the BIA for further
consideration.
“Under CAT’s implementing regulations, the BIA must consider all
evidence of country conditions to determine the likelihood that an applicant would
be tortured.” Madrigal v. Holder, 716 F.3d 499, 508 (9th Cir. 2013) (citing 8
C.F.R. § 1208.16(c)(3)). The BIA need not “discuss each piece of evidence
submitted,” but if “there is any indication that the BIA did not consider all of the
evidence before it,” such as “failing to mention highly probative or potentially
dispositive evidence,” remand is appropriate. Cole v. Holder, 659 F.3d 762,
771–73 (9th Cir. 2011).
Neither the IJ nor the BIA took into account country conditions reports or
the testimony of Auguy, Petitioner’s father, who had been a highly visible
television preacher in the DRC. Auguy’s asylum application had been the basis for
Petitioner’s derivative grant of asylum. Auguy was found credible by the IJ.
In denying CAT relief to Petitioner, the BIA wrote, “There is no
indication . . . that DRC government officials or any other individuals acting [in]
an official capacity would be interested in him at this time.” (Emphasis added.)
However, Auguy testified otherwise. Auguy testified that his name would still be
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recognized in the DRC, that Petitioner would be at risk despite the passage of time,
and that his American citizenship afforded him safety in the DRC that Petitioner
would not share. Auguy’s return visits to the DRC indicate familiarity with current
conditions, including relatively little change in the relevant governmental actors.
Auguy testified, “Congolese, they can kill you. They can destroy you.” He was
asked, “So you’re telling me you think that if he were to go back something bad
would happen to him.” He answered, “Yeah, if they know it’s him.” He was
asked, “How would they know?” He answered, “They have a magnet [sic]. He’s
an Ilunga Kabamba.”
Auguy’s testimony was the kind of “highly probative” and “potentially
dispositive” evidence warranting consideration. Cole, 659 F.3d at 771–72.
Further, there was evidence in the record, both in Auguy’s testimony and in
country condition reports, that Petitioner would be at additional risk because of his
status as a returned asylum seeker. Petitioner’s submissions describe a study of
returned asylum seekers in which just over half experienced some form of
mistreatment. Auguy’s testimony, in combination with country condition reports,
may warrant a different conclusion than that reached by the BIA.
Petition GRANTED and REMANDED.
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