*1 pre- to cure deficiencies failure repeated amendments, prejudice undue
vious futility.”)
non-moving party, or
Ill the district affirm
Accordingly, we summary judgment grant
court’s Fargo.
Wells Petitioner, MALONGA,
Noel MUKASEY, Attorney
Michael B.
General, Respondent.
No. 07-3443. Appeals, States Court
United
Eighth Circuit. 26, 2008. Sept.
Submitted: 3, 2008.
Filed: Nov. 15, 2009.
Rehearing Denied Jan. *3 Rachel Wichmer, argued,
Timothy E. MO, Louis, for brief, Groneck, St. on the petitioner. An- Dupree, argued, Henderson
Thomas brief, Oliveira, Dept, of U.S. on the drew D.C., respondent. Justice, Washington, BRIGHT, RILEY, and Before MELLOY, Judges. Circuit BRIGHT, Judge. Circuit for review Malonga petitions Noel Ap- Immigration of the Board decision (“BIA”) asy- denying his claims peals removal, relief un- lum, withholding of Torture Against der the Convention (“CAT”). jurisdiction under 8 Having 1252(a), peti- deny Malonga’s U.S.C. asylum and CAT it relates to tion as on his with- claims, petition grant but vacate the claim. We removal holding of remov- refusing to withhold BIA’s decision findings. for new al remand
I. BACKGROUND Background A. Procedural and citizen Malonga, native (“Congo”), entered Republic an ex- August 1993 as United States him to entitled visa visitor. His change In August until country stay in this application filed an July removal, asylum, withholding of and CAT manding the case to the BIA in light of a protection, asserting per- that he had been change in policy the BIA’s in similar affirm ethnicity secuted on account of his opinion without granted cases. This court political opinion Congo. September motion, remanding the case to the BIA Immigration and Naturalization with instructions to “indicate grounds (“INS”) charged Malonga Service with be- upon which it affirms the decision.” [IJ’s] ing removable in accordance with 8 U.S.C. September 2007, BIA again af- 1227(a)(1)(B). At a hearing, Malonga decision, firmed the IJ’s stating that Mal- allegations admitted the charging onga’s asylum application removability. order and conceded and that he had not established extraordi- *4 2001, In Malonga appeared October be- nary necessary circumstances to excuse (“IJ”) fore an immigration judge pro- and untimely application. the The BIA also documentary vided oral and evidence in adopted stated that and affirmed the support requests asylum, of his for with- with respect to Malonga’s removal, holding of and protection. CAT ineligibility for withholding of removal and In an oral decision in October the IJ protection under In CAT. October found that Malonga was removable as 2007, Malonga petition filed this for review charged and all denied relief. The IJ de- of the BIA’s final order removal. Malonga’s nied application asylum be- untimely cause it was filed and because B. Factual Background Malonga’s explanation for the fil- At Malonga’s IJ, hearing with the he ing-his depression-was not an “extraordi- introduced evidence that he is a member nary circumstance.” Alternatively, the IJ the Lari ethnic group tribe, of the Kongo Malonga asylum denied because he had which is a group by accent, identifiable not shown that he had past perse- suffered dialect, region, home and surname. Mal- cution and failed to show that he had a onga further contended that he has a long well-founded fear persecution. of future history of supporting democratic reforms The IJ also concluded that eth- in Congo and that he is or has been a nicity not a particular was social group and member of professional various social and that Malonga persecuted had not been on groups oppose Congolese govern- Next, account political opinion. of his ment, including Congolese Movement IJ Malonga’s denied motion for withhold- Democracy Integral and Development ing of removal because he “failed to estab- and the Congolese Collective of Scholars probability lish a clear persecution Native from Pool. the same reasons that” the IJ had denied asylum. Finally, the IJ found that Malon- fourteen, In Malonga when he ga was not protection entitled to under the participated against demonstration CAT because he likely was not more than Ngouabi. President Marlen Malonga stat- not to be tortured returned to Congo. government ed that forces beat him as express findings IJ made no regard- they attempted up to break the demon- ing Malonga’s credibility. stration and that he injuries sustained Malonga appealed the required IJ’s decision to hospital In treatment. BIA, which affirmed without opinion in Malonga participated in another demon- April 2004. Malonga filed his initial peti- military stration that forcibly disrupt- tion for review in May this court in Malonga 2004 ed. police claimed that arrested subsequently and moved for an order re- him in 1977 for attending opposition that he feared Malonga testified forty- dead. him for detained meeting, political he believed returning because hours, him. eight beat Malonga persecuted. be would he had 1990, Malonga, who become De- from the State reports introduced also farm, ordered of a state-controlled director International, Amnesty partment larger of a part to strike employees human- poor describe the which generally that of- Malonga testified strike. national Congo. rights conditions President in the ficials administration him, demoted Sassou-Nguesso Denis of Braz- Congo’s capital II. him to DISCUSSION
transferred all at a desk zaville, him to sit and ordered subject to “Only the BIA order is nothing. day doing review, findings and including the IJ’s our in an anti- part took express extent were reasoning to the against demonstration government BIA.” v. Mu ly by the Osonowo adopted Lissouba, Pascal newly President elected (8th Cir.2008). kasey, 521 dispersed with violence. which soldiers when the But both decisions we review were killed protestors Four adds its decision but adopts BIA the IJ’s *5 protest, as a result received bruises v. here. Setiadi reasoning, as See own seriously was not testified that he but he Cir.2006). (8th Gonzales, 437 F.3d 713 to Mal- came evening, That soldiers hurt. immigra of questions review We of him. When house in search onga’s INS, 223 F.3d Tang novo. v. tion de law Malonga, find soldiers could (8th Cir.2000). review an We (allegedly with a cross marked his house under the sub factual determinations destroyed) and that should be indicating test, requires which stantial-evidence threat. your skin” as a get wrote “we will by rea supported be those determinations from Lis- threats Malonga also received substantial, sonable, probative evi and at supporters work. souba INS, Perinpanathan dence. v. difficulty that he had Malonga testified Cir.2002). (8th will not re 597 in 1993 be- obtaining travel documentation petition unless “the verse factual his de- sign refused to supervisor cause a was so that the evidence er demonstrates telling him that he was papers, parture fact finder that no reasonable compelling be and that he should maker[]” “trouble petitioner.” in favor could to find fail and stay “face required to (8th F.3d 667 Turay “doing.” he was consequences” what Cir.2005). neces- Ultimately, Malonga obtained the traveled to United sary signatures and Malonga’s Timeliness of A. funded study program under States to Asylum Application for Agency for Interna- by the States United Malonga completed Development. tional challenges the IJ’s Malonga first at Illinois Southern degree his master’s untimely application excuse his refusal to University in 1999. asylum must asylum. applicant An clear-and-convincing evi demonstrate States, in the United
After his arrival applica filed the applicant dence that forces Malonga government claims that ar year applicant’s tion one within testi- destroyed his also house. 1, 1997, later. whichever is wife, April rival or contact with his that he fied lost 1158(a)(2)(B). § The one- See 8 U.S.C. child, war Congo’s 1996 civil parents and only may be excused year period are parents that his that he believes Mouawad, claims.1 “changed cir- review such See can demonstrate applicant ex- “extraordinary circum- F.3d at 411. Because the decision to cumstances” 1158(a)(2)(D). untimely asylum § an application cuse filed stances.” 8 U.S.C. discretionary and court because this has Here, dispute the fact Malonga does not ID already determined that the REAL Act filed, application that his jurisdiction did not confer to this court to excuse, Malonga’s the IJ determined review the of an IJ’s propriety refusal qualify was insufficient to depression, his untimely petition, excuse an we do not “extraordinary circumstance.” The as an jurisdiction Malonga’s asy- have to review jurisdic- that this court lacks argues INS lum claim. to review the IJ’s decision because tion 1158(a)(3), § provides 8 U.S.C. Withholding B. of Removal2 jurisdiction to review court shall have “[n]o qualify withholding To of re Attorney General any determination moval, applicant the burden of has (2).” attempts paragraph under showing a “clear probability,” Zhuang review appellate to avail himself of Cir.2006), (1) applied that the district court arguing threat that his “life or freedom would be legal determining an incorrect standard country ened in the of removal proposed “extraordinary circumstances” ex- whether race, (2) religion, nationality, account of on untimely application cused group, particular social law confer recent amendments to federal 1231(b)(3); political opinion.” 8 U.S.C. jurisdiction this issue. this court over 1208.16(b). clear probability C.F.R. precluded that we are We conclude withholding of standard for removal *6 reviewing refusal to excuse from the IJ’s fear more onerous than the well-founded untimely application. This cir Malonga’s asylum. 471 Zhuang, standard for See an routinely cuit held that whether has at F.3d 891. in should be excused application may applicant requi An make the discretionary judgment of the volves such, withholding removal in and, showing unre- site of Attorney General as is Gonzales, First, See, may show ways. applicant v. two e.g., viewable. Mouawad (8th Cir.2007); of one of the 405, past persecution on the basis 485 F.3d Jal (8th above, Gonzales, 569, listed thus protected grounds five low v. 472 F.3d 571 that re Cir.2007); creating presumption a rebuttable Ignatova v. 430 F.3d (8th Cir.2005). his life or freedom. 1209, Furthermore moval would threaten 1214 1208.16(b)(1). Second, ap rejected Malonga’s 8 C.F.R. already this court has 2005, may withholding of re plicant qualify REAL ID Act of argument that the 109-13, 231, she establishes that is (May 310 moval if he or Pub.L. No. 119 Stat. likely applicant than not that 2005), granted ability this court the to more removal, asylum, Withholding unlike is recognize Circuit has of 1. We the Ninth are, filing period. questions subject one-year that such in some circum held to a not stances, subject appellate review. See Hu to Malonga’s claim. merits of therefore reach the (9th syev Mukasey, 1178 v. 528 F.3d doing, we the IJ denied Malon- In so note that Cir.2008). But even were to find based on the ga's to withhold removal motion reasoning Husyev persuasive, we can of to be asylum relating Malonga's precedent. See United States not overrule our claim. Lippman, 369 F.3d 1044 Cir. v. 2004) (stating panel circuit court that a may precedent). not overrule circuit (BIA Chen, 1989), on ac I. & N. Dec. persecuted upon removal would be (BIA S-P-, 21 I. protected grounds. of 8 In re & N. Dec. 486 count one 1208.16(b)(2). 1996), establishing past Persecution the standard for C.F.R. death, torture, persecution. “the infliction or threat of In re Chen is the seminal freedom, in injury person to one’s on case which the BIA described the stan- race, religion, nationality, asylum. mem account of dard for so-called “humanitarian” (or group, claim bership typical asylum Unlike with- removal), Regalado-Garcia political opinion.” holding requires ap- of an (8th Cir.2002). INS, 784, 787 plicant persecution, establish his fear of concept asylum may Persecution an “extreme and humanitarian in granted be involving does not include intimidation and particularly past low-level cases atrocious Heston, persecution Cigaran Zakirov v. harassment.” alone. See (8th Cir.2004). (8th Cir.1998). Humani- therefore, asylum, tarian difficult is more Malonga challenges the BIA’s affir- (or ordinary asylum to establish than with- mance of the IJ’s refusal to withhold re removal). holding Consequently, the IJ (1) moval, claiming applied the IJ an Malonga’s persecu- measured evidence legal defining past incorrect standard purposes establishing tion for withhold- and, persecution under the correct stan ing against heightened of removal dard, “a reasonable fact finder would be asylum. standard for humanitarian compelled to conclude that suf analysis supports The IJ’s further Mal- (2) past persecution Congo”; fered onga’s argument applied the IJ “recognize IJ failed to the nexus between incorrect, heightened standard when ana- Malonga’s past persecu each incident of lyzing his claim to withhold removal. The statutorily protect tion and two of the five following: IJ stated the (3) grounds”; wrongly ed the IJ found [Malonga] on which mistreatment possess did not fear of future 30-year period political relies is the persecution past “he per when established activity. activity political gave That rise secution, the Service did rebut beatings to severe mid-1970’s [the] presumption persecution of future and the *7 lycee, when he a student at a name- evidence of record confirms that individu ly, in 1971 and later in 1977when he was similarly Malonga per als situated to are by police. arrested and beaten the I Congo.” responds secuted in The INS have this considered mistreatment and supported the IJ’s are have concluded that it is not at the same and, therefore, substantial evidence the qualitative severity level as that any compel record does not reversal of of of applicants which the In re in S-P- and findings. the IJ’s experienced. re [In Chen] 1. Standard for Persecution Under added). Thus, (emphasis Addendum at 7 8 C.F.R. 1208.16 case, compared the the of IJ facts this agree ap ordinary asylum
Because we that the IJ which raise and withhold- claims, plied legal ing the incorrect standard in defin of removal with the facts of In Chen, ing past persecution asy- as 1208.16uses that re which involved humanitarian term, we that a recognize conclude remand for new lum. We that the IJ also cited S-P-, findings under the correct standard is nec In re which humani- did not involve essary. denying Malonga’s requested asylum. tarian But we con- nonetheless relief, cases, appropriate the IJ cited the BIA In re clude that a remand is because to determine from the rec introduced evidence that he is are unable BIA) (or applied group whether the IJ a member of the Lari ethnic of the ord in legal analyzing tribe, correct standard Kongo group a which is identifiable removal. Haile accent, dialect, whether to withhold region, home and sur- Cf. michael rejected Malonga’s argu- name. The IJ Cir.2006) an (stating that IJ must describe ment, stating “certainly that he [did] reasoning specificity with sufficient [Malonga] think that is a of a member review). appellate facilitate particular group.” far can social As as we tell, evaluate, remand, the IJ based this conclusion on one the BIA should On standard, legal whether consideration: evidence indicates that under the correct (1) persecu- past Kongo comprises has established ethnic tribe of 48% membership on account of his a population Congo. tion of conclud- IJ opinion, or particular group political social Kongo group comprises ed “the ethnic thereby raising presumption a of future a minority, popula- substantial 48% of the (and so, if persecution whether INS Congo. Simply being tion in of member (2) presumption) has rebutted that group place respondent does not that, Congo, it shown returned to any greater any risk than members of ... likely than not that he would be “more group comprise the rest of that al- ... persecuted on account of population.” half of most particular group, political social reasoning The IJ’s conflicts with (b)(2). 1208.16(b)(1), opinion.” § precedent, the BIA’s own which defined Group 2. Particular Social “particular “a of group” group social common, all of share a im persons whom Because the issue will arise “sex, color, mutable characteristic” such as remand, address the again on we also ties, kinship or in some circumstances that the Lari ethnic erroneous conclusion See, past experience.” e.g., ... shared group particular tribe is not a (BIA Acosta, 1985), re 19 I. & N. Dec. withholding group purposes social grounds by overruled on In re Mo- other removal because is “a substantial minori 1987). (BIA gharrabi, 19 I. & N. Dec. 439 Congo.3 ty” population Whether BIA In re Recently, the has affirmed the group” pres group “particular social definition, underscoring impor Acosta law, question ents a which we review de visibility” alleged tance of the “social Ngengwe Mukasey, novo. See C-A-, group. See In re (8th Cir.2008) particular social (engaging de (BIA 2006). I. 23 & N. Dec. novo review of whether female Camerooni is, likely society at That the more group). are a widows *8 (by, for large recognizes alleged group But we accord “substantial deference to kinship commonali example, linguistic or of the interpretation the BIA’s statutes ties), likely that the group the more regulations it administers.” Bushira (8th Gonzales, 626, particular group purposes social v. 442 F.3d 630 Cir. 2006). cir- withholding of removal. See id. This Malonga opinion Congolese government political considers also raised his remand, persecution. We dis- opponent. a basis for his cannot the BIA political On rejected argument. the IJ Al- cern if this Malonga's as- should make clear on though portions of the IJ's decision indicate persecuted sertion that he was on account rejection argument, the IJ his of this believed political opinion. his only "questionable'' whether tion, yet fact understanding this of a this did not foreclose cuit has affirmed See, Davila- group. e.g., they particular conclusion that were a so- particular social (8th 624, 628 Mejia Mukasey, v. 531 F.3d group. cial Cir.2008). authority The INS cites no for the size,
By myopically focusing on the IJ group, that an proposition ethnic even to consider the other relevant here failed comprising minority a substantial of the determining whether the Lari factors categorically from population, is excluded Kongo partic of the tribe is a group ethnic particular characterization as a social group. Applying ular social uncontro- group. acknowledge that we have verted record evidence to the standard alleged particular held that certain social by the BIA in In re Acosta and In adopted they groups were “overbroad” because en- C-A-, that the Lari ethnic re we conclude See, compassed many too individuals. Kongo particular tribe is a group INS, 720, e.g., Raffington 340 F.3d group purposes withholding social (8th Cir.2003) “mentally ill (holding that removal. Members of the tribe share large female Jamaicans” are “too and di- accent, recog which is common dialect group qualify” particular verse a to as a in Congo. nizable to others Members also INS, 636, group); social 25 F.3d Safaie are identifiable their surnames and Cir.1994) (8th (holding that “Iranian Congo’s their concentration in southern overbroad), superseded, by women” is stat- region. Pool Our conclusion is consistent grounds. ute on other But these cases with other decisions of this court and of change against did not the metric BIA, applicants in which have estab alleged particular group social is meas- particular group lished social status for Rather, Raffington ured. sim- Safaie members of certain Somali ethnic clans. that, ply present- determined on the facts See, e.g., Awale v. ed, proposed group insufficiently (8th Cir.2004); Hagi-Salad v. Ash particular group. cohesive to be a social (8th Cir.2004); croft, 359 F.3d here, therefore, presented On the facts (BIA H-, In re 21 I. & N. Dec. group conclude that the Lari ethnic 1996). particular group.4 tribe is a social
Recently, this court concluded that an “easily ethnic recognizable” Liberian CAT Protection C. group, Mandingo group, tribal was a lastly contends particular group. Bah v. social See Brima improperly IJ denied relief under the CAT Gonzales, Cir. grounds because “there are substantial 2006). Nothing Brima Bah indicated believing subject that he will be to torture group depends social status by Congolese security upon forces return exclusively group’s on the size. And in Congo.” responds INS Malon- Hassan v. this court determined ga did not meet burden to establish a particular “Somali females” were that he would be tortured if he were re subject group because were Congo. moved to possibility genital of female mutilation. comprise qualify See 484 F.3d 518. Females To for relief under the *9 CAT, large percentage popula- of the Somali an alien must show “that it is more 1231(b)(3); 1208.16(b)(1). § express opinion § 4. We no on whether Malon- 8 C.F.R. ga's inquiry, mistreatment in was “on account leave that fact-intensive in the first instance, the BIA on of” his in the tribe. See 8 U.S.C. to remand. tured, “gross, flagrant be evidence of or mass not that he or she would likely than rights” human coun- violations of within the proposed to the tortured removed 1208.16(c)(2). removal, country of and “other relevant § 8 C.F.R. try of removal.” regarding information” conditions in the than is “more onerous This standard 1208.16(c)(3). country of removal. Id. withholding for ... of removal standard[ ] Mouawad, 485 F.3d respects.” in certain stating After the standards for CAT “persecution” for the example, at 413. For protection, the IJ stated: withholding may of removal purposes of showing this case there has been no than that is less severe encompass abuse that [Malonga] experienced has torture of the CAT. See purposes “torture” for the certainly in past, there is no F.3d Samedov years 10 or 15 past indication within Cir.2005) (8th (noting the CAT’s “narrow” [Malonga] that has mis- experienced torture). of The standards for definition type treatment of the that is described however, onerous, CAT relief are “less in the definition of torture. Conse- require applicant that do not I that quently have concluded there [sic] future harm on the show that he fears [Malonga] has failed to show it is more statutorily-defined ground.” any of basis probable than not that he will be tor- Mouawad, at 413. upon Republic tured return to the of Congo. CAT, “torture” is defined as:
Under Addendum at 12. by pain act or suffer- any which severe mental, or inten- We conclude that the record evidence ing, physical whether is person convincing compel not so a reasonable tionally inflicted on such finder of fact to determine that it is “more obtaining from him or her purposes as likely than not” that he would be tortured or a con- person or a third information Congo.5 if he returned to fession, punishing him or her for an act person he or a third has commit- or she Malonga’s most serious incidents of committed, of suspected having ted or is mistreatment occurred more than physical her intimidating coercing him or or were the thirty years ago generally based, person, any a third or for reason security Congolese result of the efforts of kind, any when such on discrimination disperse forces to demonstrations. See In suffering inflicted or at the pain or (BIA J-E, re 23 I. & N. Dec. instigation of or with the consent 2002) treatment, (“[R]ough deplorable acquiescence public of a official or other brutality, does not amount police such as acting capacity. in an person official (citing Report to torture” of the Commit- 1208.18(a)(1). Relations, Rep. Exec. Foreign The IJ must tee on S. 8 C.F.R. Cong., 2d all relevant to the likeli- No. 101st Sess. consider evidence torture, (1990))), grounds overruled on other including, hood of future but F.3d 1013 applicant has Azanor v. limited to: evidence Cir.2004). documentary And the materials past, tortured evidence been include evidence that there applicant part could relocate to a the record political prisoners” nor country likely reports where he is not to be tor- were “no persecuted probability he will light of the narrow clear be CAT's definition purposes withholding regarding of removal. See our conclusion the BIA’s "torture/’ Samedov, (recognizing at 708 grant the CATdoes not refusal to relief under remand, possibility, of “torture” is "not cotermi foreclose the on definition persecution”). finding nous with BIA has demonstrated *10 556 undisciplined gov- group. recently cial This court stated the “that reports
were there
“
an
phrase
‘[particular
group’
abuses such as
social
officials committed
ernment
executions,
looting,
ambiguous phrase,
not defined in the stat
rape,
summary
Ngengwe Mukasey,
F.3d
Dep’t,
State
Re- ute.”
543
other violent acts.” U.S.
(8th Cir.2008).
1029,
majority
As the
Country Report on Hu-
1033
public
1(c) (2002).
correctly recognizes,
legal
Al-
we
while
review
Rights
man
Practices
novo,
de
we
also “ac-
contains some evidence determinations
must
though the record
forces, the
deference to the
government
]
[BIA]’s
substantial
eord[
of abuses
interpretation
regula
of the statutes and
documentary
also notes
evidence
rights
Mukasey,
in human
it administers.” Uli v.
533
training
tions
police “received
(8th Cir.2008)
organiza-
(citing
F.3d
[nongovernmental
local
from
high-ranking police offi- Hassan v.
516
and that
tions]”
Cir.2007)).
exhorting police
give
must
defer
“gave
cials
offi-
“Chevron
speeches
respect
interpreta
to
civilians and
ence to the BIA’s reasonable
cers and officials
rights.”
phrase
[particular
Id.
tion of
social
their
(cit
group].” Ngengwe,
founded fear of based gender.” Id.
their prece- BIA’s majority quotes
The
dent, particular which defines a social all of whom group group persons as “a GILL, Plaintiff-Appellee, F. Charles common, characteristic” share a immutable “sex, color, ties, in some kinship such as experi- ... past circumstances shared MACIEJEWSKI, acting in his in Geoff find, majority But the does not ence.” capacity dividual as an officer of the reflect, does not members of
the record University of Minnesota Police De common, tribe share a immuta- Kongo partment, Defendant-Appellant. sex, color, ties, kinship ble characteristic of 07-3451, 07-3482, 07-3630. Nos. from past experience distinguished population the rest of the nation’s or as Appeals, States Court of United shared, common characteristic of the some Eighth Circuit. Instead, majority argues Kongo tribe. recognizable a Submitted: June 2008. the tribe members share surnames, accent, identifiable dialect and Filed: Nov. Congo’s in southern concentration traits, more, Region. Pool Such without
hardly identify particular group. social Safaie, “no fact finder could reason-
As
ably conclude that all [members fear of
Kongo had well-founded tribe]
persecution solely [Kongo based on their membership].”
tribe Id. decides, contrary to majority
The then IJ, met his burden ethnicity
prove constitutes group. no majority’s expanded findings are applying particu-
more reasonable for