Lusingo v. Atty Gen USA

Opinions of the United

2005 Decisions States Court of Appeals

for the Third Circuit

8-19-2005

Lusingo v. Atty Gen USA

Precedential or Non-Precedential: Precedential

Docket No. 03-4418

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PRECEDENTIAL

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-4418

FIKIRI LUSINGO,

Petitioner

v.

*ALBERTO GONZALES, Attorney General

of the United States,

Respondent

*(Amended pursuant to F.R.A.P. 43(c))

On Petition for Review from the

Board of Immigration Appeals

BIA No. A79-239-847

Argued: March 8, 2005

Before: NYGAARD 1 , McKEE and RENDELL, Circuit

Judges

(Opinion filed: August 19, 2005)

1

Judge Richard L. Nygaard, Senior Circuit Judge effective

July 9, 2005.

Stephen J. Spiegelhalter (Argued)

Latham & Watkins

555 11 th Street, N.W.

Suite 1000

Washington, D.C. 20004

Attorney for Petitioner

Christopher C. Fuller

Linda S. Wernery

Douglas E. Ginsburg

John M. McAdams, Jr.

Lyle D. Jentzer, (Argued)

United States Department of Justice

Office of Immigration Litigation

P.O. Box 878

Ben Franklin Station

Washington, D.C. 20044

Attorneys for Respondent

OPINION

McKEE, Circuit Judge

Fikiri Lusingo petitions for review of the decision of the

Board of Immigration Appeals affirming the Immigration

Judge’s denial of asylum. Although the BIA disagreed with the

Immigration Judge’s analysis of much of the evidence Lusingo

presented during his removal hearing, the BIA ultimately

2

affirmed the IJ’s order denying relief. On appeal, Lusingo

argues that the BIA’s ruling denying his asylum claim is

“objectively unreasonable.” 2 For the reasons that follow, we

agree and we will grant the petition for review and remand for

additional proceedings consistent with this opinion.

I. Background.

Lusingo is a native and citizen of Tanzania. He speaks

Swahili, and very little English. On July 23, 2001, when

Lusingo was sixteen years old, he entered the United States as

a visitor for pleasure in order to participate in the International

Boy Scout Jamboree in Fredericksburg, Virginia. His visa

allowed him to remain in the United States until January 23,

2002. Prior to coming to the United States, Lusingo lived with

both parents and attended school.

However, Lusingo did not remain at the jamboree.

Instead, he and two other scouts left the jamboree and went to

the home of a relative of one of the boys. They were eventually

reported missing, and their disappearance received extensive

international media coverage.

2

The BIA also ruled that Lusingo failed to establish that he

was eligible for withholding of removal or relief under the

United Nations Convention against Torture and Other Cruel, Inhuman

or Degrading Treatment or Punishment (the “CAT”), but allowed him

voluntary departure. Lusingo has not petitioned for review of those

rulings and his claim for withholding of removal and relief under the

CAT is therefore not before us.

3

When Lusingo learned of the extensive news reports of

his disappearance, he became frightened and reported to a police

station in Maryland. The police transferred him to the custody

of the Immigration and Naturalization Service.3 During the

ensuing INS interrogation, Lusingo expressed fear that he would

face persecution if returned home because the extensive media

coverage of his disappearance would no doubt have embarrassed

the government of Tanzania. Lusingo had come to the United

States with hopes of converting his visa into a student visa so

that he could remain here and receive an education. He

therefore had no reason to fear persecution until the media blitz

occurred. The extensive coverage of his disappearance resulted

in the broadcast of a substantial amount of unflattering

information about the Tanzanian government. This included

reports that Lusingo feared his government would retaliate by

imprisoning him upon his return home, and by economic

retaliation against his family. Reports of the possibility of

Lusingo’s likely imprisonment upon his return mentioned that

“it is common for boys to be sexually exploited while in jail in

Tanzania.”

3

On March 1, 2003, the INS ceased to exist as an agency

within the Department of Justice and its functions were

transferred to the Department of Homeland Security. See

Homeland Security Act of 2002, Pub.L. No. 107-296, 110 Stat.

2135 (2002). For the sake of consistency, we will use the term

INS to refer both to the historical INS and to the Department of

Homeland Security to the extent that it is currently fulfilling

duties historically performed by the INS.

4

Lusingo petitioned for asylum based upon his fear that he

would be persecuted upon his return home because the

Tanzanian government persecutes people who embarrass it. The

testimony Lusingo produced during the ensuing removal hearing

before the Immigration Judge included the declaration of Dr.

Rakesh Rajani. Dr. Rajani’s expertise on human rights in

Tanzania was not disputed. His declaration states in part:

the government [of Tanzania] looks unfavorably

on those who they perceive to have embarrassed

the government or that simply reflect poorly on

the government, especially in the eyes of the

international community ... [Lusingo] ... publicly

embarrassed the Tanzanian government by

disappearing from the Boy Scout Jamboree . . .

which led to the involvement of the U.S.

authorities and spurred wide spread media

coverage both in the United States and in

Tanzania. The Tanzanian government does not

turn a blind eye to such embarrassing publicity, as

it could mar their relationship with Western

donors ... if sent back to Tanzania, [Lusingo] is

likely to be arrested and interrogated upon arrival,

as the Tanzanian government is clearly quite

interested in his case, as is shown from its

statements to the American and African press.

After he is arrested, he may be subject to beatings,

indefinite detention, a prolonged trial.

Dr. Rajani also described Tanzanian jails and the type of

torture and treatment endured by prisoners. According to his

5

declaration, this includes: co-mingling of adults and children

and the consequent sexual abuse of the children, cells covered

with urine and feces, forced manual labor including carrying

buckets of human excrement; and lack of due process. Dr.

Rajani also explained that, given the unfavorable publicity,

Lusingo could be subject to prolonged imprisonment under such

conditions without actually being charged with any crime. He

recounted an event in 2002 where 120 prisoners were held in a

room designed to hold 30. Many of those prisoners died of

suffocation. Dr. Rajani’s declaration ended with the following

statement:

[Lusingo] is at risk of the aforementioned

conditions and abuse even if he is not ultimately

convicted of a crime. . . . Fikiri would be held as

a remand prisoner, where . . . he would endure

appalling conditions and be vulnerable to sexual

molestation and abuse by adult prisoners or

detainees. Thus, [he] is likely to face abuse

notwithstanding the outcome of his case if he is

forced to return to Tanzania and is prosecuted.4

When asked to describe the attitude of the Tanzanian

4

Dr. Rakjani also offered his eyewitness account of a child

that he saw beaten by police. The child had been given a book

to attend school, but the police mistakenly believed he had

stolen the book, and began beating the child. Dr. Rajani stated

that he tried to intercede on behalf of the boy and was himself

imprisoned.

6

government toward those believed to be disloyal, Dr. Rajani

responded: “the government takes a very dim view of people

who are disloyal. It has very little tolerance from them ...

dissent is seen as unpatriotic, it is seen as treacherous, and

people who are perceived to have been disloyal to the

government are treated very harshly by the government.” He

also declared that Lusingo’s departure from the Boy Scout

Jamboree had received “quite a bit of coverage.” He lived in

Tanzania at the time and recalled “vividly that there was a

strong sense in Tanzania that what these young people have

done was, was extremely disloyal and you got a palpable sense

the government was angry with their actions.”

Dr. Rajani opined that it was likely that the Tanzanian

government would jail Lusingo upon his return and that he

would be mistreated in much the same manner the government

treats the street children who are also a source of

embarrassment. Dr. Rajani believed that the Tanzanian

government was angry, “especially since his situation is so

unusual for generating so much media interest in both

countries.” Dr. Rajani concluded that Lusingo had a

“reasonable and legitimate fear of returning to Tanzania,”

because it was likely that he would be “detained, interrogated,

and in that process would be held in prison conditions that

would be detrimental to his health and probably life

threatening.” Dr. Rajani’s testimony was not rebutted.

Lusingo also produced a declaration from Loren Landau,

Ph.D., a Research Coordinator of the Witwaterstand’s Forced

Migration Studies Program in Johannesburg, South Africa. Dr.

Landau, had first-hand knowledge of prison conditions in

7

Tanzania. He opined that Lusingo had a “legitimate and

reasonable fear of imprisonment if returned to Tanzania, where

he would likely be commingled with adults and would certainly

face horrific conditions . . . [because] . . . the government

continues to act with disproportionate force against individuals

or groups who oppose the government or embarrass the

government in anyway.”

In addition, Lusingo testified credibly about his personal

knowledge of police mistreatment of Tanzanian citizens. 5 He

said that he had seen prisoners (including those with handicaps)

being kicked and beaten with batons. He also testified that his

friend was once arrested for “hanging out” on the street. His

friend returned home without ever having been charged with any

offense and told Lusingo of the conditions he had observed in

prison. Lusingo learned that detainees are physically mistreated,

denied food and medicine, and often raped by violent

homosexual prisoners.

Christopher Nugent, Director of the Commission on

5

There was no finding of adverse credibility by the IJ with

respect to Lusingo’s testimony at the removal hearing.

Accordingly, we presume its veracity. Where the alien’s

credibility is not determined by the BIA, “we must proceed as if

[his/her] testimony were credible . . . ”. Kayembe v. Ashcroft,

334 F.3d 231, 325 (3d Cir. 2003). Moreover, nothing on this

record even suggests that Lusingo’s testimony was not credible,

and both the IJ and the BIA found that he had a genuine fear of

returning home.

8

Immigration Policy, Practice and Pro Bono of the American Bar

Association, also testified at Lusingo’s removal hearing. He

explained that, while interviewing Lusingo, he had been “struck

by how fearful [Lusingo] was of returning to Tanzania after all

of the press reports.”

Documentary evidence that was admitted corroborated

Lusingo’s evidence. U.S. State Department Country Reports on

Human Rights Practices in Tanzania described that country’s

jails as being among the worst in Africa. JA. 012-013. The

Report also confirmed that the Tanzanian government has little

appetite for dissent. Id. The human rights record was “poor”

and includes arbitrary arrests, torture, beatings, and horrendous

prison conditions. Id.

A. The Immigration Judge’s Decision.6

The IJ found Lusingo’s fear of return “subjectively

genuine.” JA 012. The judge summarized Lusingo’s claim as

follows:

It is essentially [Lusingo’s] contention that once

the Tanzanian government became aware that he

had disappeared from the scouting jamboree in

Virginia and attempted to remain in the United

6

Although we are reviewing the decision of the BIA, not the

Immigration Judge, a review of the IJ’s reasoning is helpful to

our analysis of the BIA’s decision since the BIA partially agreed

with the IJ’s rationale.

9

States to attend school, it became angry with him

for creating such a “media circus.” Because of

such government embarrassment it will target him

for persecution upon his return based on a

political opinion imputed to him. In this regard,

[Lusingo] avers that his decision to walk away

from the jamboree, an event his government

permitted him to attend, and his determination to

remain in the United States, will be viewed as an

adverse imputed political opinion which the

government has a history of responding to by acts

constituting persecution and/or torture.

J.A. 011.

However, the IJ denied asylum, withholding of removal

and relief under the United Nations Convention Against Torture

based largely upon his interpretation of Dr. Rajani’s testimony.

The IJ explained:

An important aspect of Mr. Rajani’s testimony . .

is that he equated respondent’s situation to the

Tanzanian government’s handling of street

children in the cities. . . . these children are an

embarrassment to the government, which

sometimes files criminal charges against them for

vagrancy, or rounds them up and trucks them off

to a rural area, where they are released out of

sight of the public. . . Of those juveniles who find

themselves locked away in prison awaiting trial,

they are sometimes jailed with violent criminal

10

predators who rape and otherwise sexually abuse

them. [Lusingo] feared that once returned, [he]

may well find himself immediately detained with

adult prisoners and thus will face all of the

shortcomings of the penal system of Tanzania.

J.A. 013. However, the IJ concluded that the evidence

established that the Tanzanian government had not targeted

children for abuse. Id. He concluded that, although street

children may be harassed, even beaten and jailed “merely [for]

being poor and destitute, . . . this is not per se persecution . . .

nor is it relevant to [Lusingo’s] claim”. Id. The IJ was

“unconvinced that [Lusingo’s] claim [had] any relevant

relationship with the alleged mistreatment of street children in

Tanzania.” Id., JA014.

The IJ noted that he was only able to find one newspaper

article from Tanzania relating to Lusingo’s case, and he

therefore doubted Dr.Rajani’s testimony about the scope of

media coverage of Lusingo’s disappearance in the Tanzanian

and international press. Id. The IJ also expressed skepticism that

Lusingo’s unauthorized presence in the United States under the

circumstances presented “would result in persecution,” whether

or not the Tanzanian government was embarrassed by it. Id., at

15. Finally, the IJ noted Lusingo’s claim of future persecution

was further undermined by the fact that the Tanzanian

government had not retaliated against his parents. Based upon

all of these considerations, the IJ denied relief based upon his

conclusion that Lusingo had not established a well-founded fear

of future persecution.

11

B. The BIA’s Decision.

Although the BIA ultimately affirmed the IJ’s denial of

relief, it disagreed with several important aspects of the IJ’s

analysis. The Board held that “the Immigration Judge erred in

concluding that there was a lack of evidence relating to the

Tanzanian government’s sensitivity to adverse publicity

generated by [Lusingo’s] departure from the jamboree.” JA 005.

On the contrary, the Board found that Lusingo’s departure

“received extensive media attention, including media coverage

in Tanzania.” Id. Nevertheless, the BIA affirmed the denial of

relief based primarily upon its rejection of Lusingo’s analogy to

his plight and that of street children in Tanzania. JA. O05.

The BIA reasoned: “[Lusingo’s] experts do not have a

good analogy of [his] situation, insofar as the mistreatment of

street children in Tanzania does not have much relevance to

[his] claim. [Lusingo] comes from a stable family, with both

parents employed, and he attended school until he left Tanzania.

While such media attention may have embarrassed the

Tanzanian Government, we do not find that it gives rise to a

well-founded fear of persecution.” J.A. 005.

The Board also reasoned that the fact that Lusingo’s

parents had neither been arrested nor harmed even though

Lusingo had testified that they knew of his desire to remain in

the United States from the outset, undermined Lusingo’s claim

of a well- founded fear of persecution upon his return home.

J.A. 006. The Board thus denied relief, and this Petition for

Review followed.

12

II. DISCUSSION

We have jurisdiction to review final orders of the BIA

pursuant to 8 U.S.C. § 1252. We do not review the Immigration

Judge’s rulings unless adopted by the BIA. Kayembe, 334 F.3d

at 234. Because the BIA’s denial of relief was based on a

factual finding, we must affirm it if it is supported by

"substantial evidence." Balasubramanrim, 143 F.3d at 161.

“Substantial evidence is more than a scintilla, and must do more

than create a suspicion of the existence of the fact to be

established. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion...."

N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S.

292, 300 (1939) (internal citations omitted).

As noted above, although the BIA affirmed the IJ’s

denial of relief, it rejected several of the IJ’s findings and

adjudicated Lusingo’s appeal based upon its independent

assessment of the record. We therefore review the BIA’s

decision to determine if it is supported by substantial evidence

in the record.

Under the Immigration and Naturalization Act (“INA”),

the Attorney General has discretion to grant asylum to an alien

who qualifies as a “refugee.” See 8 U.S. C. § 1158(b)(1). An

alien qualifies as a “refugee” by establishing either past

persecution or a well-founded fear of future persecution because

of “race, religion, nationality, membership in a particular social

group, or political opinion,” if returned to his/her prior country

13

of residence. Kayembe, 334 F.3d at 234.7

The inquiry into whether an alien has established the

requisite well-founded fear of future persecution is both

subjective and objective. The subjective component is satisfied

by proof that the professed fear is genuine. The objective

component is satisfied by proof that the alien’s subjective fear

is reasonable in light of all of the record evidence. Guo v.

Ashcroft, 386 F.3d 556 (3d Cir. 2004).

Lusingo produced abundant evidence that his fear is

genuine, and the subjective component of his claim is not

disputed. Rather, the dispute focuses on whether that fear is

objectively reasonable. An alien may demonstrate that his/her

belief is objectively reasonable by documentary or expert

evidence about the conditions in a given country. Lukwago v.

Ashcroft, 329 F.3d 157, 177 (3d. Cir. 2003). When documentary

evidence is lacking, an “applicant’s credible, persuasive, and

specific testimony may suffice” to establish an objective fear of

prosecution. Id. citing Gomez v. I.N.S., 947 F.2d 660, 663 (2d

Cir. 1991).

On appeal to the BIA, Lusingo claimed that the IJ applied

7

The IJ reasoned that Lusingo’s claim was based on the fact

that the Tanzanian government would regard him as being

critical of the regime based upon his unfavorable comments and

the adverse publicity they generated. The IJ treated this as a

claim for refugee status based upon an imputed political

opinion, and the BIA did not disagree.

14

the wrong legal standard for asylum because the IJ stated that

Lusingo had to prove that he “would” face persecution.” The

BIA disagreed based upon its conclusion that “the record in its

entirety reflects that [the IJ] understood and applied the proper

standard, . . . [and] considered whether [Lusingo] had

established . . . ‘a reasonable possibility’ of suffering

persecution in Tanzania.” JA005.

However, the BIA determined that the IJ had “erred in

concluding that there was a lack of evidence relating to the

Tanzanian government’s sensitivity to adverse publicity

generated by [Lusingo’s] departure from the jamboree.” Id.

Rather, the BIA agreed with Lusingo that “his departure from

the boy scouts jamboree received extensive media attention,

including media coverage in Tanzania. . . .” Id. Nevertheless,

the BIA agreed that Lusingo’s subjective fear was not

objectively reasonable and that he therefore could not satisfy the

second part of the asylum inquiry.

The BIA’s conclusion that Lusingo’s claim was not

objectively reasonable was based primarily upon the analogy to

street children that also troubled the IJ. The Board explained:

[Lusingo’s] experts do not have a good analogy to [his]

situation, insofar as the mistreatment of street children in

Tanzania does not have much relevance to [Lusingo’s] claim.

[He] comes from a stable family, with both parents employed,

and he attended school until he left Tanzania. While such media

attention may have embarrassed the Tanzanian Government, we

do not find that it gives rise to a well founded fear of

persecution. The record does not establish that the media

attention . . . will lead to [Lusingo’s] persecution.

15

Id. The BIA’s explanation is puzzling because it totally misses

the point of Lusingo’s analogy. Lusingo did not claim that he

was part of the social group of street children, as the BIA’s

analysis suggests, or that he was subject to persecution upon his

return because the Tanzanian government persecutes children.

Rather, he merely introduced evidence of the Tanzanian

government’s repressive attitude toward street children because

they are an embarrassment to the Tanzanian government, and

because the government’s retaliation for the embarrassment they

cause is relevant to the reasonableness of Lusingo’s fear that he

will be persecuted upon his return because he also embarrassed

the government. That testimony, if accepted, is certainly

supported by the record, and could establish Lusingo’s claim of

an objectively reasonable and well-founded fear. Thus, we are

at a loss to understand the Board’s rejection of it based upon

what it apparently interpreted as a poorly conceived attempt to

suggest Lusingo was a street child.

We are also at a loss to understand the significance the

Board attached to the fact that the Tanzanian government had

not retaliated against Lusingo’s parents. The Board reasoned,

“the lack of repercussion to his family tends to suggest that his

family has nothing to fear from the government. We too find

the reasonableness of [Lusingo’s] fear of persecution is reduced

insofar as his family continues to reside unharmed in Tanzania.”

JA 006. However, as the Board clearly notes, Dr. Rajani

testified that Lusingo’s family would only be “treated harshly if

the Tanzanian government thought they were party to [his]

unauthorized stay in the United States.” Id. at. JA006.

Although Lusingo testified that his parents knew of his desire to

remain here to seek an education, there is nothing to suggest that

16

the his parents knew he planned to leave the jamboree and stay

in the United States when he left Tanzania, or that the media

reports suggested they knew, or that the Tanzanian government

suspected their complicity. Accordingly, Dr. Rajani’s testimony

does not suggest that the government’s failure to retaliate

against Lusingo’s parents should undermine the objective

reasonableness of Lusingo’s fear of retaliation absent further

explanation for reaching that conclusion.

There is no dispute that Lusingo’s fear of return is

genuine. In addition, the BIA accepted the evidence of the

repressive and retaliatory nature of the Tanzanian regime as well

as the fact that reports of Lusingo’s departure from the jamboree

reached Tanzania and caused the government embarrassment.

Moreover, as noted above, the BIA accepted the IJ’s analysis of

Lusingo’s asylum claim as being based on imputed political

opinion criticizing the government. Accordingly, it is difficult

for us to determine on this record why Lusingo is not entitled to

the asylum he is seeking.

In similar situations, we have granted petitions for

review, and remanded the matter for additional explanation of

the rationale for denying relief. In Kayembe, we granted the

petition for review and remanded to the BIA because “‘the

BIA’s decision [provided] us with no way to conduct our (albeit

limited) review.’” 334 F.3d at 238. Similarly, in Dia v.

Ashcroft, 353 F.3d 228, 251 (3d Cir. 2003) (en banc), we could

not understand the IJ’s rationale for denying relief. We stated:

“we cannot affirm the IJ’s findings and conclusions on the

record presented to us, as the reasons she does provide in

support of her decision do not logically flow from the facts she

17

considered.”

Given the BIA’s misinterpretation of Lusingo’s evidence

about street children, and the unwarranted weight attached to the

fact that his parents were not persecuted when the Tanzanian

government learned of the unfavorable reports of his departure

from the jamboree, the reasons the BIA gave in support of its

decision do not logically flow from the facts it considered here

either. Accordingly, we will remand to the BIA for further

explanation of the basis for its decision. “When deficiencies in

the BIA’s decision make it impossible for us to meaningfully

review its decision, we must vacate that decision and remand so

that the BIA can further explain its reasoning.” Kayembe, 334.

F.3d at 238.

Before concluding, we pause to comment on some of the

arguments the Attorney General makes in its brief as they reflect

a problem which is increasingly common in the growing number

of cases coming before us. The Attorney General argues that

the absence of “even one news report or letter to the editor”

undermines Lusingo’s claims regarding the media coverage in

Tanzania. Appellee’s Br. at 31. This argument is either

disingenuous or embarrassingly naive. Given the allegations on

this record about the Tanzanian government’s reaction to those

who embarrass it, no one can seriously suggest that the absence

of “letters to the editor” on a topic that may embarrass the

regime has any probative value whatsoever. We are therefore

both confounded and somewhat puzzled by the suggestion that

Lusingo should have introduced “letters to the editor” excerpted

from the Tanzanian press to support his claim that his

18

disappearance received publicity in Tanzania.8

In a less astonishing but similarly myopic assertion, the

Attorney General relies upon statements attributed to the

Tanzanian Ambassador to the United States in its attempt to

suggest that Lusingo has nothing to fear. The Attorney General

argues that some of the articles that Dr. Landau introduced

indicated that the “Tanzanian Ambassador was aware that

Lusingo . . . [was] hoping to stay in the United States to further

[his] education, that the Tanzanian government was consulting

with our government about the situation, and that the Tanzanian

government had assured the boys’ families that they were safe.”

Appellee’s Br. At 29. The Attorney General should appreciate

that an ambassador of Tanzania is rather unlikely to make public

pronouncements that his/her government persecutes its citizens

or retaliates against them for unfavorable publicity in the

international press. Thus, it should come as no surprise that the

Tanzanian Ambassador managed a diplomatic response to

inquiries about Lusingo. It is, however, surprising that anyone

would suggest that the ambassador’s response proves anything

other than his diplomatic acumen.

III CONCLUSION

For the reasons set forth above, we will grant the petition

8

Moreover, absence of letters to the editor would be of

questionable probative value even in the context of the free,

open and vigorous press that we enjoy here. It certainly has no

probative value here.

19

for review and remand to the BIA for further proceedings

consistent with this opinion.

20