Mulanga v. Atty Gen USA

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Precedential or Non-Precedential: Precedential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