Mutale v. Lynch

12-2455
Mutale v. Lynch
BIA
Straus, IJ
A096 265 793
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
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER 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
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 24th day of November, two thousand fifteen.
5
6 PRESENT:
7 DEBRA ANN LIVINGSTON,
8 DENNY CHIN,
9 RAYMOND J. LOHIER, JR.,
10 Circuit Judges.
11 _____________________________________
12
13 BAMBINO KANKUBA MUTALE,
14 Petitioner,
15
16 v. 12-2455
17 NAC
18 LORETTA E. LYNCH, UNITED STATES
19 ATTORNEY GENERAL,
20 Respondent.
21 _____________________________________
22
23 FOR PETITIONER: James E. Swaine, Hamden, CT.
24
25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney
26 General; Terri Scadron, Assistant
27 Director; Lisa M. Damiano, Trial
28 Attorney; Harris B. Hoffberg, Law
29 Clerk, Office of Immigration
30 Litigation, Civil Division, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 decision of the Board of Immigration Appeals (“BIA”), it is
3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for
4 review is DENIED.
5 Petitioner Bambino Kankuba Mutale, a native and citizen
6 of the Democratic Republic of Congo (“DRC”), seeks review of
7 a May 23, 2012, order of the BIA affirming the April 21,
8 2010, decision of Immigration Judge (“IJ”) Michael W.
9 Straus, denying his application for asylum, withholding of
10 removal, and relief under the Convention Against Torture
11 (“CAT”). In re Bambino Kankuba Mutale, No. A096 265 793
12 (B.I.A. May 23, 2012), aff’g No. A096 265 793 (Immig. Ct.
13 Hartford Apr. 21, 2010). We assume the parties’ familiarity
14 with the underlying facts and procedural history of the
15 case.
16 Under the circumstances of this case, we have reviewed
17 both the IJ’s and the BIA’s opinions “for the sake of
18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.
19 2008) (internal quotation marks omitted). The applicable
20 standards of review are well-established. See Yanqin Weng
21 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Mutale does
22 not challenge the agency’s denial of CAT relief before this
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1 Court, and because he did not argue before the BIA that the
2 IJ erred by incorporating the findings and decision of the
3 Asylum Officer into his decision, and the government has
4 raised this failure to exhaust, we do not consider this
5 issue. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d
6 104, 119-20, 124 (2d Cir. 2007).
7 “While consistent, detailed, and credible testimony may
8 be sufficient to carry the alien’s burden, evidence
9 corroborating his story, or an explanation for its absence,
10 may be required where it would reasonably be expected.”
11 Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000). Before
12 denying a claim solely because of an applicant’s failure to
13 provide corroborating evidence, the agency must “explain
14 specifically, either in its decision or otherwise in the
15 record . . . why it is reasonable . . . to expect such
16 corroboration; and [] why . . . explanations for the lack of
17 such corroboration are insufficient.” Id. at 290.
18 Here, the IJ identified the evidence that Mutale needed
19 to corroborate his claim — documents regarding the
20 activities of the Katangan People’s Congress (“KPC”) in the
21 DRC and Zambia, that the DRC government sought to harm KPC
22 members, and that there was a massacre of KPC members in
3
1 Lubumbashi in 1997 — and Mutale had an opportunity either to
2 provide that evidence or explain why it was not reasonably
3 available. Mutale neither provided this evidence to the IJ
4 nor explained why he was unable to provide such
5 documentation. In his appeal to the BIA, Mutale stated that
6 due to the generally violent conditions in the DRC, there
7 was minimal evidence regarding specific incidents, such as
8 the massacre in 1997. However, this does not explain why
9 there is no mention of the KPC at all in any of the country
10 condition reports, or why Mutale was unable to provide
11 personal statements from his wife or other KPC members
12 attesting to the organization’s activities and the
13 government’s campaign against the KPC. See id. at 285-86;
14 see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.
15 2005).
16 Accordingly, because the agency identified the required
17 evidence and gave Mutale time to obtain it, and because
18 Mutale failed to explain why such evidence was unavailable,
19 the agency did not err in relying on his lack of
20 corroboration and determining that his testimony alone could
21 not establish a well-founded fear of future persecution on
22 account of a protected ground. See Majidi, 430 F.3d at 80-
4
1 81; Diallo, 232 F.3d at 285-86, 290.
2 Because Mutale was unable to establish a well-founded
3 fear of future persecution, the agency did not err in
4 denying his application for asylum, and he was necessarily
5 unable to meet the higher standard for withholding of
6 removal. See 8 C.F.R. § 1208.13(b); Lecaj v. Holder, 616
7 F.3d 111, 119-20 (2d Cir. 2010); Ramsameachire v. Ashcroft,
8 357 F.3d 169, 178 (2d Cir. 2004).
9 For the foregoing reasons, the petition for review is
10 DENIED. As we have completed our review, any stay of
11 removal that the Court previously granted in this petition
12 is VACATED, and any pending motion for a stay of removal in
13 this petition is DISMISSED as moot. Any pending request for
14 oral argument in this petition is DENIED in accordance with
15 Federal Rule of Appellate Procedure 34(a)(2), and Second
16 Circuit Local Rule 34.1(b).
17 FOR THE COURT:
18 Catherine O’Hagan Wolfe, Clerk
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