Bob Nsimba v. Attorney General United States

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3565
_____________
BOB LUPINI NSIMBA,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA
______________
On Petition for Review of a Final Order of the
Board of Immigration Appeals
(BIA – 1: A213-235-413)
Immigration Judge: Pallavi S. Shirole
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a):
on July 12, 2021
______________
Before: McKEE, GREENAWAY, JR., and RESTREPO,
Circuit Judges.
(Opinion Filed: December 22, 2021)
Valentine A. Brown
Duane Morris LLP
30 S. 17th Street
Philadelphia, PA 19103
Counsel for Petitioner
Dawn S. Conrad
Stephen Finn
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044
Counsel for Respondent
______________
OPINION OF THE COURT
______________
McKEE, Circuit Judge.
Bob Lupini Nsimba petitions for review of a December
8, 2020 decision of the Board of Immigration Appeals
affirming the Immigration Judge’s denial of his application for
asylum. In affirming that decision, the BIA misapplied and
misinterpreted controlling precedent and imposed
requirements on those seeking relief that would require
petitioners to first endure torture or arrest. Accordingly, for the
reasons that follow, we will grant the petition for review,
vacate the ruling of the BIA and remand for further
proceedings consistent with this opinion.
I. Background
Nsimba was born in the Democratic Republic of the
Congo (“DRC” or “Congo”) in 1992.1 His parents died when
he was very young, and he was raised by his aunt.2 His wife
and his two children still live in the DRC.3
Nsimba became actively involved in Congolese
politics in 2011 when he joined the largest political party
there, the Union for Democracy and Social Progress
(“UDPS”).4 The UDPS opposed the policies of then-
President Joseph Kabila. In 2018, when it became apparent
that the head of the UDPS, Felix Tshisekedi, and Kabila were
1
AR 297.
2
Id. at 297–98.
3
Id. at 164.
4
Id. at 299.
2
conspiring to ensure that Tshisekedi would succeed Kabila in
the upcoming 2018 elections, Nsimba left the UDPS. Upon
leaving, he co-founded a political and social networking
group named Liberté Congolaise, along with a man named
Fabrice. The two formed the organization for the express
purpose of opposing the presidential regime of Joseph
Kabila.5 Nsimba was also an active participant in political
demonstrations opposing Kabila and Tshisekedi.
Tshisekedi did, in fact, succeed Kabila as president in
an election in December 2018.6 Nsimba’s work in opposition
to Tshisekedi included disseminating anti-government
political materials and videos of peaceful protestors being
shot by the ruling party.7 Nsimba also personally attended
demonstrations where a protestor was shot because of his
opposition to Kabila’s regime.8
In 2019, Nsimba began to be personally targeted for
his protest activities. On June 30, 2019, after a demonstration
in Kinshasa against the policies of newly elected President
Tshisekedi, Nsimba learned that Fabrice disappeared after
being arrested.9 Two days later, police came to Nsimba’s
home to arrest him.10 However, Nsimba was not home
when they came. After forcefully entering his home and
unsuccessfully searching for him, the police informed
Nsimba’s family that they intended to arrest him.11 Later that
day, Nsimba escaped to the town of Muanda where he was
able to hide in his aunt’s home. Muanda is located about 620
km (385 miles) away from Kinshasa.12
Even after Nsimba’s escape to Muanda, police
continued to pursue him. The National Criminal Police
Committee issued written convocations (i.e., summonses)
for him to appear on a certain date before a criminal police
5
Id. at 300–01.
6
Id. at 300.
7
Id. at 301.
8
Id. at 307.
9
Id. at 302.
10
Id. at 303.
11
Id. at 153, 303.
12
Id. at 303.
3
officer.13 In addition, Nsimba subsequently learned that the
police also issued summonses at his house, and
representatives of the State returned to his family home on
numerous occasions to carry out their threats of arrest.14
Nsimba subsequently fled to the United States, after
less than two months of hiding at his aunt’s house in
13
Id. at 325–31.
14
Id. at 325–31, 364–66. The BIA goes to some lengths to
note that the government issued a “summons” rather than an
arrest warrant, but it offers no authority to support its
assumption that what is termed a “summons” or
“convocation” under Congolese law is less authoritative or
threatening than the warrants familiar to us. The BIA states:
We further note that although [Nsimba] claims
on appeal that the DRC government issued
“multiple arrest warrants” for his arrest, the
evidence [he] submitted . . . shows that
summonses – not arrest warrants – were issued
by the DRC police. Specifically, [Nsimba]
submitted phone transcripts from the person who
sent the summonses to his attorney, which
indicates that they are summonses, not arrest
warrants, which are different, but the
individual’s friend told him that there was an
arrest warrant for [Nsimba’s] arrest. Notably,
the summonses do not indicate why [Nsimba]
was required to appear at the DRC’s police
headquarters.
Id. at 6 (citations omitted). We have no idea what authority the
BIA relies upon in assuming a legal distinction between a
summons and a warrant under Congolese law. It appears to
merely assume that the distinction is the same as recognized in
the law of the United States. Our conclusion in that regard is
reinforced by the fact that the BIA thought it was “notable” that
the summonses did not give Nsimba notice of why he was to
appear. It is surprising and disappointing that the BIA would
believe it notable that a regime that shoots and jails opponents
does not bother to inform people why they are to report to
police headquarters. This is yet another troubling aspect of the
BIA’s analysis.
4
Muanda.15 He managed to flee by exploiting personal
contacts and bribes.16 While at the airport in Kinshasa, as
he was in the process of fleeing to the United States, a
member of the customs and immigration group there
warned him “never plan to return to the Congo.” 17
II. Discussion18
A. Asylum
To establish asylum eligibility, noncitizens must show
they are “unable or unwilling to return to” their 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.”19 The
persecution must be demonstrated by either events they have
suffered in the past or through a showing that they have a
well-founded—meaning, subjectively genuine and objectively
reasonable—fear of future persecution if they return to their
home country, or both.20 Noncitizens seeking asylum must
15
Id. at 304–05.
16
Id.
17
Id. at 307.
18
The BIA had jurisdiction pursuant to 8 C.F.R. §
1003.1(b)(3). We have jurisdiction pursuant to 8 U.S.C. §
1252(a). Blanco v. Att’y Gen. United States, 967 F.3d 304, 310
(3d Cir. 2020). We review the Board’s factual findings for
substantial evidence and review its legal determinations de
novo. Id.19
8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B).
20
Chavarria v. Gonzalez, 446 F.3d 508, 520 (3d Cir. 2006);
N.L.A. v. Holder, 744 F.3d 425, 431 (7th Cir. 2014). The
Immigration Judge found Nsimba’s testimony regarding his
subjective fear of future persecution credible and the BIA
implicitly accepted that finding. AR 5–6, 84. Credible
testimony by an applicant of his or her subjective fear of future
persecution is enough to satisfy the subjective component that
is required to support such a well-founded fear. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 431 (1987). Therefore, since
Nsimba is relying upon his fear of future persecution in this
appeal, rather than pursuing a claim of past persecution, we
need only discuss whether his fear of future persecution is
5
also show that the government in their home country either
committed the persecution or was unable or unwilling to
control the persecutor and that they cannot safely relocate if
returned.21
B. Pattern or Practice of Persecution & Individualized
Risk
One may establish an objectively reasonable fear of
future persecution by demonstrating either an individualized
risk of persecution or a pattern or practice of persecution of
similarly situated individuals.22 Here, the Immigration
Judge acknowledged “concerning” conditions within the
DRC for those who politically oppose the government, but
denied relief.23 They were “concerning” to say the least.
The Country Conditions Report that was introduced
discussed how political prisoners in the DRC were routinely
abused, tortured, and subjected to violence.24 The record
also established a pattern or practice of persecution against
those similarly situated to Nsimba. Many of Nsimba’s
fellow political protestors were shot and, as noted earlier, the
person who co-founded Nsimba’s political organization with
him was arrested and then disappeared into the bowels of a
Congolese prison. Moreover, it is beyond dispute that the
DRC has a history, pattern, and practice, of persecuting
political objectors.25
The evidence here established not only that Nsimba
was similarly situated to other political activists who had
objectively reasonable. Nsimba’s own testimony and
documentary evidence may establish that his fear of future
persecution is objectively reasonable. Lukwago v. Ashcroft,
329 F.3d 157, 177 (3d Cir. 2003) (“An applicant may use
testimonial, documentary, or expert evidence to show both a
subjective and an objectively reasonable fear of future
persecution.”).
21
Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.
2002), superseded on other grounds by 8 U.S.C. §
1158(b)(1)(B)(iii).
22
8 C.F.R. § 1208.13(b)(2)(iii)(A).
23
AR 84.
24
AR 254–326, 429–40, 533-675, 713–24.
25
Id. at 674–785.
6
disappeared, been arrested and/or shot. It also established
that Nsimba faced an individualized risk of persecution by
the Congolese government for his political opinions. Over
an extended period of time, the government of the Congo
sought to arrest him, and he certainly had reason to believe it
was for both his leadership in Liberté Congolaise and his
associated political activities opposing the government.
That is undisputed.
C. Reasonable Fear of Future Persecution
Based on the arguments before the BIA, we need only
decide if Nsimba has established an objectively reasonable
fear of future persecution based upon his political opinion.
The BIA determined that he had not satisfied that burden, but
its analysis is both troubling and puzzling. It is uncontested
that before he fled to safety, the police threatened to arrest
Nsimba and went to his house to search for him a number of
times—forcibly entering at least once. It is also uncontested
that Fabrice, who co-founded an organization that opposed
the regime in the DRC along with Nsimba, disappeared after
being arrested. In the hearing before the Immigration Judge,
the government did not dispute that Nsimba had attended
demonstrations where police had shot some of the
demonstrators. Nsimba also credibly testified that when
fleeing the country, a government official told him never to
return. Nsimba quite reasonably interpreted that as a
threat.
Yet, the BIA somehow concluded that someone in
Nsimba’s situation could not have an objectively reasonable
fear of persecution if returned to the Congo. The BIA
attempted to explain its bizarre conclusion by cherry-picking
evidence rather than viewing the entirety of the record, and
also by conjecture that minimized the threat Nsimba was
under by using unsupported assumptions to minimize the
importance of the documents police tried to serve on him.26
The BIA noted that “although [Nsimba] testified that the
police threatened to arrest him, [he] was never arrested and
neither he nor any of his family members were ever
26
See note 14, supra.
7
physically harmed in any way by anyone in the DRC.”27
After citing some of our precedential opinions as authority,
the BIA continued:
The Immigration Judge correctly found that
[Nsimba] has not shown an objectively
reasonable possibility that he will be subjected
to future harm as [he] has not presented
sufficient evidence which demonstrates that the
police or any government official is presently
searching for him in the DRC or that he will be
targeted for harm there.28
Before discussing the BIA’s misapplication of the
authority it relied upon, it is important to note that Nsimba
did not have to show that police were currently actively
searching for him in order to have a reasonable fear of future
persecution. It is only by virtue of his being away from home
when the police first came for him, and the fact that he could
hide at his aunt’s home hundreds of miles away, that he was
able to escape the country without being arrested. Police
returned to Nsimba’s home to search for him and issued a
summons for him in an effort to take him into custody.
Moreover, even if the DRC police have finally realized
Nsimba may have fled and they abandoned their search for
him, nothing in this record suggests that police would no
longer be interested in him if he returned.
Instead, the record suggests that the police are waiting
for Nsimba to return. Nsimba credibly testified that when
police came for him a few days after arresting Fabrice,
“[they] told his family that he had been identified as an
opponent to the government and they would find and arrest
him.”29 The BIA’s reasoning would require someone who
becomes a target of a repressive regime to “shelter in place”
and actually be arrested, and then hope for an impossible
escape, before fear of future persecution would become
objectively reasonable. But, of course, had Nsimba been
arrested he would most certainly have fared no better than
27
AR 4.
28
Id. at 5.
29
Id. at 83.
8
Fabrice; most likely, Nsimba would not have been heard from
again either.
Similarly, the law does not require that family
members be seized or tortured in order for an asylee to have a
reasonable fear of persecution upon return to his or her
homeland. Neither the fact that police may have since
stopped looking for Nsimba, nor the fact that police did not
seize a family member instead of Nsimba, preclude finding
that Nsimba’s fear of returning was reasonable. Indeed, the
fact that family members were not arrested may well support
Nsimba’s fear of future persecution on account of his
opposition to the regime. After all, there is nothing to suggest
that any of his family members opposed the regime or that
anyone in authority had identified any member of his family
as a political enemy.30
One final observation about the BIA’s analysis
deserves mention before we discuss the BIA’s misapplication
of our precedent. In explaining why Nsimba’s fear of future
persecution was not reasonable, the BIA stated: “[Nsimba]
resided for 2 months at his aunt’s home without harm
following the police’s attempted arrest, and he was able to
obtain a passport in his own name and leave the country
without arrest[.] [This] undercuts the objective
reasonableness of his fear of future persecution.”31 But of
course, that is a non sequitur. Nsimba credibly testified that
he was able to do this only by bribing officials and exploiting
some of his personal contacts. The fact that he was able to
obtain a passport in his own name and leave, despite customs
agents apparently knowing he was wanted (they warned him
never to return), merely reinforces the evidence of the corrupt
nature of the regime. It does not negate the reasonableness of
30
It must also be remembered that family members who remain
subject to oppressive regimes may themselves be in danger if
they attempt to communicate with one who has fled the
country, as has been the case here. See AR 153 (Nsimba
explaining during his removal proceedings that police “entered
the house by force and they went through every single piece of
the house to see if they could find me there. God is great that
they did not rape my wife and my cousin like the other[]
[police] do to other women.”).
31
AR 5.
9
his fear of returning. His subjective fear is not unreasonable
simply because he has some contacts in the DRC and may
also be able to pay additional bribes to forestall arrest or
torture if he is returned. His contacts and bribes were
insufficient to forestall a summons being issued for his arrest
and they did not prevent police from forcing their way into
his home to search for him. The continued existence of any
such contacts and his possible ability to pay additional bribes
simply does not mean that his fear of returning is
unreasonable. Moreover, none of the cases cited by the BIA
are to the contrary.
The BIA cited Herrera-Reyes v. Attorney General of
the United States, 32 in which we held that the BIA had erred
in not considering the aggregate effect of an asylum
applicant’s mistreatment. The BIA attempts to distinguish
that case because Nsimba “was never arrested and neither he
nor any of his family members were ever physically
harmed.”33 We have already explained that the law does not
condition asylum upon first “sheltering in place” until
actually being arrested. It is difficult to understand why the
BIA would believe that one could not have an objectively
reasonable fear of future persecution without having first
been arrested. It is the grim reality of oppressive regimes that
few, if any, of those arrested are ever able to escape captivity,
let alone the country, so that they can subsequently seek
asylum. Moreover, in Herrera-Reyes, we concluded that the
Immigration Judge erred in holding that the petitioner had not
suffered past persecution pursuant to the asylum statute by
finding “it dispositive that [p]etitioner herself ‘was never
physically harmed’ and ‘never arrested or imprisoned.’”34 It
should therefore have been clear that if past persecution can
be established without any showing of physical harm or
arrest, fear of future persecution can be reasonable without
any such showing.
We have also explained that “past persecution requires
more than considering whether individual incidents are
sufficiently ‘extreme’; it requires meaningful consideration of
32
952 F.3d 101 (3d Cir. 2020).
33
AR 4.
34
952 F.3d at 109.
10
whether their aggregate effect poses a ‘severe affront[ ] to the
[petitioner’s] life or freedom.’”35 Here, rather than focusing
on Nsimba’s ability to avoid the fate of his co-founder,
Fabrice, the BIA should have focused on whether the totality
of circumstances Nsimba faced, including Fabrice’s
disappearance, the police shooting participants at an anti-
regime demonstration, and the fact that police had come
searching for Nsimba, were enough to establish that his
genuine fear of persecution if returned to the DRC was
reasonable. Clearly, the escalating pattern of mistreatment
toward both Nsimba and others was “concrete and
menacing.”36
Yet, as we have had to clarify numerous times
before,37 “the BIA’s analysis does little more than cherry-pick
a few pieces of evidence, state why that evidence does not
support a well-founded fear of persecution and summarily
conclude that [Nsimba’s] asylum petition therefore lacks
merit. That is selective rather than plenary review.”38 It is
more akin to the argument of an advocate than the impartial
analysis of a quasi-judicial agency.
The BIA also relied upon Chavarria v. Gonzalez39 and
Fei Mei Cheng v. Attorney General of the United States,40 but
neither of them support the BIA’s decision. In fact, a fair and
35
Id. at 110.
36
Id. at 107–08, 110–12.
37
See Kang v. Att’y Gen., 611 F.3d 157, 167 (3d Cir. 2010)
(“[T]he BIA ignored overwhelming probative evidence . . . its
findings were not reasonably grounded in the record and thus .
. . [t]he BIA’s determination was not based on substantial
evidence.’’); Gallimore v. Att’y Gen., 619 F.3d 216, 221 (3d
Cir. 2010) (holding that ‘‘the BIA’s analysis in all likelihood
rests on an historically inaccurate premise . . . the BIA’s
opinion fails adequately to explain its reasoning and, in any
event, appears incorrect as a matter of law.’’); Quao Lin Dong
v. Att’y Gen., 638 F.3d 223, 229 (3d Cir. 2011) (finding the
BIA ‘‘erred by misapplying the law regarding when
corroboration is necessary . . . .’’).
38
Huang v. Att’y Gen., 620 F.3d 372, 388 (3d Cir. 2010).
39
446 F.3d 508 (3d Cir. 2006).
40
623 F.3d 175 (3d Cir. 2010).
11
objective reading of those cases would have informed the
BIA that Nsimba was entitled to the relief he is seeking.
In Chavarria, we concluded that the petitioner’s
testimony was sufficient to establish a “well-founded fear of
future persecution.”41 In doing so, we explained: “[t]he
offered testimony need not demonstrate that the persecution
would be more likely than not, or even probable. Instead, we
only require that the evidence demonstrate that the fear is
objectively reasonable.”42
Our decision in Fei Mei Cheng is not nearly as helpful
to our analysis here as our decision in Chavarria. It is also
not nearly as supportive of the BIA’s analysis as that agency
believes. Fei Mei Cheng was primarily concerned with
whether actions taken by Chinese officials to enforce China’s
“one child policy” amounted to past persecution. We were
particularly concerned with whether forced insertion of an
IUD was tantamount to torture. The discussion is therefore
not that useful in determining the existence of a reasonable
fear of future persecution under the circumstances here.
Nevertheless, we still emphasized that “[t]he cumulative
effect of the applicant’s experiences must be taken into
account because [t]aking isolated incidents out of context
may be misleading.”43 That is exactly what happened here.
The BIA also relies in part upon our nonprecedential
decision in Jian Ming Wu v. Attorney General of the United
States.44 There, the petitioner did not establish a well-
founded fear of future persecution in part because “he
traveled to his hometown [following his release from
detention in China] where he remained unharmed without
contact from the authorities for three months before leaving
China.”45 Here, Nsimba did not travel to his hometown—he
escaped to a place of safety 385 miles away. Moreover, Jian
41
446 F.3d at 522.
42
Id. at 520.
43
Fei Mei Cheng, 623 F.3d at 192 (quoting Manzur v. Dep’t of
Homeland Sec., 494 F.3d 281, 290 (2d Cir. 2007) (alterations
in original) (internal quotation marks omitted).
44
219 F. App’x 217 (3d Cir. 2007).
45
Id. at 219.
12
Ming Wu is of tenuous relevance at best. In addition to being
nonprecedential, its holding does not mitigate the fact that the
BIA simply failed to view the totality of circumstances that
were the foundation of Nsimba’s fear of returning to the
DRC.46
There is simply no way that the fair and objective
reading of this record that the law requires can support a
conclusion that Nsimba has not established that his fear of
returning to the DRC was objectively reasonable.
D. Physical Harm Not Required
Evidence of physical harm was not required to
establish fear of future persecution. The Immigration Judge
and BIA erred in holding otherwise. As we have stressed, but
apparently must emphasize yet again, we have never required
someone to actually subject themself to physical harm or
arrest before finding that his or her fear of returning to a
country is reasonable. Merely stating such an absurdity
demonstrates how illogical and impractical such a
requirement would be.47 The contrary proposition (which the
BIA relied upon here) is so unreasonable that it should have
been self-evident to any neutral tribunal. Yet, despite the
compelling record here of an objectively reasonable
subjective fear of persecution if returned to the DRC, the BIA
denied relief in part because Nsimba failed to establish any
46
Although we have chosen to address the nonprecedential
opinion in Jian Ming Wu to illustrate the weakness of the BIA’s
reliance on that nonprecedential decision, we emphasize that
our Internal Operating Procedures clearly explain that
nonprecedential decisions are not intended as precedent and
should not be treated as such. See 3d Cir. I.O.P. 5.7 (2018);
see also In re Grand Jury Investigation, 445 F.3d 266, 276 (3d
Cir. 2006) (including a fuller explanation of the limited role of
our nonprecedential opinions).
47
We have made clear that physical harm is never required to
establish past persecution or a well-founded fear of future
persecution. Herrera-Reyes v. Att’y Gen., 952 F.3d 101, 110
(3d Cir. 2020); see also Li v. Att’y Gen., 400 F.3d 157 (3d Cir.
2005) (finding a suffering of economic past persecution, in the
absence of physical harm is sufficient to establish persecution).
13
physical harm to himself or his family.48 We take this
opportunity to reiterate, no such harm is required for relief,
and—as we have explained above—the cases the BIA relied
upon here are not to the contrary. As discussed, as recently as
last year, we clarified in Herrera-Reyes that “[w]e have never
reduced our persecution analysis to a checklist or suggested
that physical violence—or any other single type of
mistreatment—is a required element of the past persecution
determination.”49 A refugee who reaches our borders need
not bear the scars or disfigurement or mutilation to establish
an objectively reasonable fear of returning home.
This record therefore compels a finding that the risks
Nsimba faced upon return to the DRC were sufficient to give
rise to an objectively reasonable fear of future persecution.50
Police attempted to capture him.51 Had he fallen into police
custody, common sense should have been all the authority
necessary to conclude that he would likely have endured
physical harm or worse. Just two days before the arrest
attempt of Nsimba, Fabrice—Nsimba’s co-leader of Liberté
Congolaise—was arrested and disappeared. No “ordinary
person of average intelligence and sound mind would
believe” that the police were not intent on arresting and
harming Nsimba as a political opponent.52
As we have already noted, the BIA also relied upon the
fact that Nsimba remained in the country without harm for
almost two months at his aunt’s home after the first attempted
arrest.53 As discussed above, the BIA seems to have misread
or misunderstood our cases in reaching this conclusion. The
BIA also concluded, and the government argues, that
Nsimba’s ability to obtain egress through bribery undermines
his claim for relief.54 However, the very fact that Nsimba was
48
AR 4–6.
49
952 F.3d at 110.
50
See Chavarria v. Gonzalez, 446 F.3d 508, 520–21 (3d Cir.
2006) (finding that physical harm was not necessary for
petitioner to qualify for a fear of future persecution).
51
AR 325–31, 364–66.
52
Reasonable Belief, Black’s Law Dictionary (2d ed. 1910).
53
AR 5.
54
Id. at 5–6; Respondent Brief at 6–8.
14
forced to use a substantial portion of his savings to escape
arrest, torture and possible death corroborates his fear of
persecution, it in no way undermines or mitigates it. And a
fair reading of this record would readily have established
that.55 Nsimba’s need to commit his life savings to a
desperate bribery scheme in order to secure his safety further
establishes the insecurity and future persecution he would
have faced in the Congo had he remained, as well as the
corrupt nature of the regime he fled from.56
55
Petitioner Reply Brief at 8 (“To leave the country, he put his
trust and his life savings in an intermediary that was able to
bribe officials to obtain the needed visa and to not arrest him
when he passed through the Congo airport.”); AR 304–05
(explaining that Nsimba paid a total of $6,700 to an
intermediary to obtain a visa to leave the DRC). Nsimba’s
payment of $6,700 was more than six times the annual gross
national income per capita in the DRC. See UNITED NATIONS
DEVELOPMENT PROGRAMME HUMAN DEVELOPMENT
REPORTS, Gross national income (GNI) per capita (constant
2017 PPP$), available at
http://hdr.undp.org/en/indicators/195706 (last visited Nov. 21,
2021).
56
The BIA also misapplied the cases it cited to support its
conclusion that Nsimba’s ability to obtain a passport in his own
name and leave the country without arrest goes against his
persecution. In Wei Ye v. Attorney General of the United
States, 708 F. App’x 75 (3d Cir. 2017), we rejected a claim of
a well-founded fear of persecution in the future because the
petitioner did not present evidence that the police continued to
look for him after an initial arrest, and he was, in fact, “able to
leave China with his own passport without any difficulty.” Id.
at 77 (alteration in original). Here, Nsimba clearly faced
difficulty leaving the Congo—he paid a bribe to flee the
country and was threatened by a government official to “never
plan to return to the Congo.” In Sumadatha v. Ashcroft, 111 F.
App’x 125 (3d Cir. 2004), we similarly concluded the
petitioner did not have a well-founded fear of future
persecution because he was able to live in Indonesia for two
years immediately prior to his arrival to the United States, in
which time he amassed a sizable wealth in Indonesia and was
able to obtain a passport in person from the city from which he
15
E. Relocation
Before concluding, we want to address the BIA’s
misguided reliance on the fact that Nsimba’s ability to hide at
a relative’s house over 300 miles from his home somehow
diminishes the objective reasonableness of his fear of future
persecution.
The law is clear that an asylum “applicant does not
have a well-founded fear of persecution if the applicant could
avoid persecution by relocating to another part of the
applicant’s country of nationality . . . if under all the
circumstances it would be reasonable to expect the applicant
to do so.”57 The BIA relied in part upon the fact that Nsimba
was able to live within the DRC and escape capture when
concluding that he could not establish a well-founded fear of
persecution.58 This is a clear error of law on this record.
Nsimba testified that he could not remain in his aunt’s
house indefinitely because it stands in “the same country” in
which his life is in danger.59 His credible testimony
established that indefinite hiding at his aunt’s house was not a
solution.60 In theory, anyone could successfully hide from
authorities in even the most repressive regime. Although it
should be obvious, we take this opportunity to inform the BIA
purportedly fled. Additionally, the petitioner’s asylum
application in Sumadatha claimed persecution based on his
religion (Hinduism) and minority status as an Indonesian man
married to an ethnically Chinese woman, but there was no
indication in the State Department reports that Hindus or
Indonesians married to ethnically Chinese persons are targeted
in any way. Id. at 128. Here, the applicable country conditions
report confirms that political opponents are targeted and
tortured in the DRC. Also, Nsimba attended his in-person
passport interview months prior to the arrest of Fabrice and
before the time when he began receiving threats from police.
Further, prior to his arrival in the United States, and contrary
to the petitioner in Sumadatha, Nsimba remained in hiding
while the police actively searched for him.
57
8 C.F.R. § 208.13(b)(2)(ii).
58
AR 5.
59
Id. at 164.
60
Id.; see also Petitioner Reply Brief at 5.
16
that remaining in hiding is not the same as safely relocating
within a country.
The mere fact that it may be possible for Nsimba to
successfully avoid arrest by remaining in hiding for the rest of
his life (or the rest of the current regime) does not make his
fear of return unreasonable. The very fact that he would have
to do so corroborates the reasonableness of his fear of future
persecution. Any other conclusion is incompatible with our
binding precedent, which has clearly held that an asylum
applicant’s need to go into hiding supports a finding that s/he
could not safely relocate within his or her country.61 As our
sister circuit court of appeals forcefully stated:
It hardly seems “reasonable to expect” one
facing persecution or torture to become a
fugitive and live in hiding. But even setting
that aside, we do not believe that an applicant
can be said to have the ability to “relocate”
within her home country if she would have to
remain in hiding there. As a practical matter, a
living arrangement that involves hiding from
the authorities is necessarily impermanent.
When used intransitively, “relocate” most
naturally refers to resettlement or a change of
residence, not the unstable situation of one who
must always be ready to flee. Moreover, living
in hiding does little to establish that a person is
able to “avoid future persecution,” or “is not
likely to be tortured[.]” To the contrary, a
person who lives in hiding does so precisely
because she continues to be in danger of being
61
See Mendoza-Ordonez v. Att’y Gen., 869 F.3d 164, 172 n.20,
173–74 (3d Cir. 2017) (stating that “[t]he Immigration Judge
was convinced that, since Mendoza lived with his sisters for a
period of time after the death threats without any incident, this
was sufficient evidence to show that safe relocation was
possible” but we found that the record “fundamentally
contradict[ed] the Immigration Judge’s reasoning and ruling”
since “in the context of the entire record, Mendoza’s fear and
his need to go into hiding ha[d] been amply and compellingly
substantiated”).
17
captured and returned to face persecution or
torture.62
We agree with other circuit courts of appeals “that
have held that ‘[r]elocating to another part of the country does
not mean living in hiding.’”63 For example, the Fifth Circuit
has found “that an alien cannot be forced to live in hiding in
order to avoid persecution.”64 The Seventh Circuit has held
that “[i]t is an error of law to assume that an applicant cannot
be entitled to asylum if she has demonstrated the ability to
escape persecution . . . by trying to remain undetected.”65
The Fourth Circuit has concluded that time spent hiding in a
village did not support the BIA’s finding that the applicant
could reasonably relocate internally in the Congo.66 And the
Second Circuit has found that the BIA erred in concluding
that a noncitizen could reasonably relocate within China
because his parents demonstrated that such relocation was
possible, where parents remained in hiding and were subject
to outstanding arrest warrants.67
We know of no authority that interprets “safely
relocate” as a synonym for “relocate,” and we refuse the
BIA’s invitation to ignore that important condition on the
reasonableness of one’s fear of future persecution following
removal. The asylum law simply cannot be fairly read to
require the removed asylum seeker to live in constant fear of
arrest, imprisonment, torture, or death. It does not condemn
one to live the rest of his/her life (or try to outlast a repressive
regime) fearing every knock on the door—assuming those in
authority there even bother with such conventions. Simply
put, if a petitioner can establish a subjective fear that he/she
will be in danger returning to his/her homeland based upon a
62
Akosung v. Barr, 970 F.3d 1095, 1101–02 (9th Cir. 2020)
(internal citations omitted).
63
Id. at 1102 (alternation in original).
64
Singh v. Sessions, 898 F.3d 518, 522 (5th Cir. 2018).
65
Holder, 744 F.3d at 442.
66
Essohou v. Gonzales, 471 F.3d 518, 522 (4th Cir. 2006).
67
Chen v. Gonzales, 169 F. App’x 25, 27 (2d Cir. 2006); see
also 3 Charles Gordon et al., Immigration Law and Procedure
§ 33.04(5)(d) (Matthew Bender, Rev. Ed.).
18
protected characteristic or trait, and such fear is objectively
reasonable, then “safe relocation” is not an option.
III. Conclusion
For the reasons we have explained, we will grant the
petition for review, vacate the deportation order, and remand
for further proceedings consistent with this opinion.
19