Matumona v. Barr
945 F.3d 1294
10th Cir.2019Background
- Matumona, a Congolese UDPS community organizer, fled DRC after participating in opposition marches (2013–2015) and testified government agents were looking for him.
- He fled to Angola in 2015, lived there a bit over a year, obtained an Angolan passport after being "adopted" by an Angolan family (used an Angolan name), and brought his wife and children to Angola; later he traveled to Brazil (2016) and then presented at the U.S. border (Jan. 2017).
- IJ denied asylum as barred by the firm‑resettlement rule (8 U.S.C. § 1158(b)(2)(A)(vi)) based on the Angolan passport and denied withholding of removal and CAT relief on the merits; BIA affirmed.
- Petitioner argued the Angolan documents were fraudulently obtained and that exceptions to firm resettlement applied (onward travel / lack of significant ties); he also argued past persecution and well‑founded fear of future persecution, plus procedural/due‑process violations from pro se detention conditions.
- Tenth Circuit affirmed most rulings (firm resettlement, failure to show past persecution, procedural claims) but REMANDED to the BIA to address Petitioner’s pattern‑or‑practice withholding claim raised before the agency.
Issues
| Issue | Matumona's Argument | Government's Argument | Held |
|---|---|---|---|
| Firm resettlement prima facie burden | Angolan passport was fraudulently obtained and he retained Congolese nationality, so government didn’t meet prima facie case | Passport and evidence (use to travel, renew visas) show facially valid offer of resettlement | Held for government: prima facie met; passport facially valid evidence of ability to remain in Angola indefinitely |
| Rebutting prima facie / fraud defense | Fraud in procurement of passport rebuts prima facie resettlement | Fraud alone insufficient to rebut absent proof the document was not issued or would not allow indefinite stay | Held for government: fraud claim insufficient; no evidence the passport was invalid or unusable |
| Exception to firm resettlement (onward travel / significant ties) | Stayed in Angola only to arrange onward travel; did not establish significant ties | Length of stay, passport/citizenship, and family relocation establish significant ties | Held for government: significant ties found; exception not proved |
| Withholding — past persecution | Hiding and being sought by authorities after protests constitutes persecution | No physical harm or arrest; hiding/precautions do not rise to persecution | Held for government: substantial evidence supports conclusion no past persecution |
| Withholding — future persecution (pattern or practice) | Country conditions show DRC targets UDPS/opposition; claim that pattern/practice exists was raised to BIA | BIA assessed only individualized risk and rejected it; government argues Petitioner didn’t preserve pattern/practice claim | Held: remand ordered — court found Petitioner raised pattern/practice before the BIA and BIA failed to address it, so BIA must consider preservation and merits on remand |
| Procedural/due process (record development, counsel access, detention conditions) | IJ failed to develop record for pro se detainee; detention impeded access to counsel and phones | IJ provided interpreter, legal aid list; Petitioner declined continuance and gave no specific missing evidence; detention conditions outside BIA jurisdiction | Held for government: no prejudicial error shown; BIA properly limited review to issues in appellate jurisdiction |
Key Cases Cited
- Elzour v. Ashcroft, 378 F.3d 1143 (10th Cir. 2004) (substantial‑evidence review and discussion of firm‑resettlement bar)
- Vicente‑Elias v. Mukasey, 532 F.3d 1086 (10th Cir. 2008) (treating persecution as a factual determination)
- Woldemeskel v. INS, 257 F.3d 1185 (10th Cir. 2001) (refugee definition and persecution standard)
- Vatulev v. Ashcroft, 354 F.3d 1207 (10th Cir. 2003) (threats rarely alone constitute past persecution but are relevant to future fear)
- Berrum‑Garcia v. Comfort, 390 F.3d 1158 (10th Cir. 2004) (prejudicial‑error requirement for due‑process challenges)
- Niang v. Gonzales, 422 F.3d 1187 (10th Cir. 2005) (remand when BIA fails to address a ground raised by applicant)
- Su Hwa She v. Holder, 629 F.3d 958 (9th Cir. 2010) (fraudulently obtained immigration documents do not automatically defeat firm‑resettlement finding)
- Firmansjah v. Gonzales, 424 F.3d 598 (7th Cir. 2005) (same principle regarding fraudulent documents)
- Salazar v. Ashcroft, 359 F.3d 45 (1st Cir. 2004) (same principle regarding fraudulent documents)