Jonas Nsongi Mbonga v. Merrick B. Garland
218f4th889
| 6th Cir. | 2021Background
- Nsongi Mbonga, a member of the Union for Democracy and Social Progress (opposition party in DRC), suffered past political persecution: beatings, detention, torture, and death threats by police/prison guards after refusing to join ruling-party youth group.
- He fled the DRC (briefly to Angola, later to a village), ultimately arrived in the U.S. in July 2018 and applied for asylum, withholding of removal, and CAT relief.
- An IJ initially denied relief (raising credibility concerns); the BIA remanded for clearer credibility findings; on remand a different IJ found him not credible and alternatively denied asylum based on changed country conditions after Felix Tshisekedi (leader of Mbonga’s party) became president.
- The BIA affirmed, assuming credibility for the changed-conditions analysis and concluded Tshisekedi’s election (and a power-sharing arrangement) rebutted a well-founded fear of political persecution; it also rejected humanitarian asylum and denied withholding and CAT relief.
- Mbonga argued the BIA erred by relying on general, national-level evidence of political change instead of individualized proof that his specific persecutors remained a present threat; he also challenged the credibility finding and sought humanitarian asylum, withholding, and CAT relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether general evidence of a governmental change can rebut a refugee’s presumption of a well-founded fear of future persecution | Mbonga: BIA needed applicant-specific evidence (e.g., status of local officials who persecuted him) to rebut his fear | Government: countrywide evidence (news, human-rights reports showing Tshisekedi’s election and power-sharing) can show changed conditions and shift burden to applicant | Held: General country-condition evidence suffices to rebut; burden shifts to Mbonga to show continued individualized risk, which he failed to do |
| Whether the BIA improperly failed to resolve/relitigate the IJ’s adverse credibility finding | Mbonga: BIA left credibility unclear and should have held another evidentiary hearing | Government: BIA’s changed-conditions decision assumed credibility; credibility issue not dispositive | Held: Court assumed credibility for review and affirmed on changed-conditions grounds (no reversible error) |
| Whether Mbonga preserved a humanitarian-asylum claim under 8 C.F.R. § 1208.13(b)(1)(iii) | Mbonga: argued in reply that changed-conditions evidence supports humanitarian-asylum theory | Government: Mbonga did not raise or develop the humanitarian-asylum claim in the opening brief; changed-conditions evidence is irrelevant to humanitarian-asylum factors | Held: Claim not preserved/adequately briefed; BIA correctly rejected humanitarian asylum on the merits (severity not shown) |
| Whether withholding of removal and CAT relief should have been granted | Mbonga: continued risk of harm/torture from DRC authorities | Government: changed conditions make future harm/torture unlikely; withholding requires higher "more-likely-than-not" standard; CAT abandoned on appeal | Held: Withholding denied (higher likelihood standard not met); CAT relief abandoned and therefore not reviewed |
Key Cases Cited
- INS v. Orlando Ventura, 537 U.S. 12 (2002) (courts generally may not decide issues the BIA did not reach)
- INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) (well-founded-fear standard for asylum)
- Liti v. Gonzales, 411 F.3d 631 (6th Cir. 2005) (post-regime-change country conditions can rebut presumption; burden shifts to applicant)
- Mapouya v. Gonzales, 487 F.3d 396 (6th Cir. 2007) (applicant-specific evidence may be required where record shows ongoing threats)
- Mecca v. Holder, [citation="604 F. App'x 465"] (6th Cir. 2015) (State Department and other general country reports can support changed-conditions findings)
- Nozadze v. Sessions, [citation="740 F. App'x 476"] (6th Cir. 2018) (explaining burden-shifting under changed-conditions regulation)
- Ramaj v. Gonzales, 466 F.3d 520 (6th Cir. 2006) (regime change can rebut future-persecution risk)
- Ceraj v. Mukasey, 511 F.3d 583 (6th Cir. 2007) (appellate review under the substantial-evidence standard for BIA factual findings)
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (CAT requires showing likelihood of torture)
- Kukalo v. Holder, 744 F.3d 395 (6th Cir. 2011) (withholding of removal requires more-likely-than-not showing)