ADAMA HEUREUX MATUMONA, а/k/a Nikuna Adao v. WILLIAM P. BARR, United States Attorney General
No. 18-9579
UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
December 30, 2019
PUBLISH
NEW MEXICO IMMIGRANT LAW CENTER; SANTA FE DREAMERS PROJECT; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; STEVEN R. ABRAMS; JEFFREY S. CHASE; TEOFILO CHAPA; GEORGE CHEW; BRUCE J. EINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART, JR.; MIRIAM HAYWARD; REBECCA JAMIL; CAROL KING; ELIZA KLEIN; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES PAZAR; GEORGE PROCTOR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY D. ROSENBERG; SUSAN ROY; PAUL W. SCHMIDT; WILLIAM VAN WYKE; GUSTAVO D. VILLAGELIU; POLLY WEBBER, Retired Immigration Judges and Former Members of the Board of Immigration Appeals, Amici Curiae.
Tassity Johnson (Matthew E. Price, Jenner & Block LLP, Washington, D.C., and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, IL, with her on the briefs), Jenner & Block LLP, Washington, D.C., for Petitioner.
Remi Da Rocha-Afodu, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Civil Division, and Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, with her on the brief), U.S. Department of Justice, Washington, D.C., for Respondent
Nicole C. Henning, Jones Day, Chicago, Illinois, filed an Amici Curiae brief for the New Mexico Immigrant Law Center, Santa Fe Dreamers Project, and American Immigration Lawyers Association, in support of Petitioner.
Jean-Claude André and Katelyn N. Rowe, Sidley Austin LLP, Los Angeles, California, filed an amici curiae brief for Retired Immigration Judges and Former Members of the Board of Immigration Appeals, in support of Petitioner.
Before LUCERO, HARTZ, and MATHESON, Circuit Judges.
HARTZ, Circuit Judge.
Petitioner Adama Matumona is a native and citizen of the Democratic Republic of the Congo (DRC). He petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of removal. Regarding asylum, Petitioner argues that the BIA (1) erred in determining that he had firmly resettled in Angola, which barred him from applying for asylum, and (2) engaged in improper factfinding in determining he was ineligible for an exception to the firm-resettlement bar. On withholding of removal, he argues that the BIA improperly rejected his claims of past persecution and a well-founded fear of future persecution. Petitioner
Exercising jurisdiction under
I. BACKGROUND
A. Factual Background
Petitioner presented himself to immigration officials at the United States border on January 4, 2017. He was detained and placed in removal proceedings as a noncitizen seeking admission without valid entry documents. See
At Petitioner‘s first master-calendar hearing in immigration court, he informed the IJ he was seeking asylum because he feared returning to the DRC. The IJ gave him a list of legal-aid attorneys and an asylum application. He expressed concern about being able to complete the application in English, which he does not understand. The IJ explained that although she could not complete the form for him, “we‘ll probably have to find
At the merits hearing the IJ offered Petitioner a continuance but he declined, saying that he wanted to proceed because he was currently “cut off from [his] family” and was dealing with unspecified medical issues. CAR 461-62. His asylum application was entered as an exhibit at the hearing, and the government submitted the 2016 Department of State Human Rights Report for the DRC. Petitioner testified that he had been a community organizer for Union pour la Démocratie et le Progrès Social (UDPS), a political party that opposed then-President Kabila‘s regime. His UDPS activities included organizing youth and others in his neighborhood to march in protest. In 2013
Petitioner initially fled to Angola alone, but he was later able to bring over his eight children and wifе. His wife had their ninth child in Angola. He said that he was still fearful for his safety in Angola because the Angolan government is an ally of the Congolese government, and thus he could still be discovered and harmed there. He also testified, however, that he experienced no actual problems in Angola. To get documents to leave Angola, Petitioner found an Angolan family to “adopt” him so he could take their Angolan name and get an Angolan passport. CAR 467. When asked by the DHS attorney, “So you also have citizenship in Angola, correct,” he responded: “Yes. I did went—I did go to through the process of trying to get a document to become an Angolan, but it is just a way of me getting the right documents so that I can move from Angola to Congo—to Brazil, but my real identity, I am a Congolese.” Id. at 475. And when later asked by the IJ, “[W]hen you became a citizen of Angola, did you have to rеnounce your
B. Procedural History
The IJ denied Petitioner‘s request for asylum on the ground of statutory ineligibility because he had firmly resettled in Angola. See
Petitioner obtained pro bono counsel and appealed the IJ‘s decision to the BIA. He also filed a motion asking the BIA to remand his case to the IJ to consider new allegedly material evidence, including additional country-conditions evidence and an affidavit of his own. The BIA dismissed the appeal. It affirmed the IJ‘s ruling that Petitioner had firmly resettled in Angola and decided that he did not qualify for any exception to the firm-resettlement bar to asylum. It also affirmed the IJ‘s decision that
When Petitioner filed his first petition for review with this court, the government moved to remand to the BIA for consideration of his testimony that he fled the DRC because govеrnment officials were looking specifically for him. We granted the motion with instructions that the BIA could consider any matter Petitioner had properly preserved.
On remand the BIA dismissed Petitioner‘s appeal on the same grounds as before. The BIA stated that it had previously acknowledged the testimony that officials were looking for Petitioner and that even accepting the testimony as true, Petitioner could not establish that he faced an individualized risk of harm.
II. DISCUSSION
Petitioner appeals the BIA‘s denial of both asylum and withholding of removal.4 He also makes several procedural challenges to the administrative proceedings, some of which are discussed below as part of his substantive claims and some of which are addressed afterwards.
A. Standard of Review
B. Asylum
Only refugees are eligible for asylum. To be considered a refugee, an applicant “must demonstrate either past ‘persecution or a well-founded fear of [future] persecution on account of racе, religion, nationality, membership in a particular social group, or political opinion.‘” Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (quoting
An applicant for relief from removal has the burden of establishing eligibility for asylum. See
In Matter of A-G-G- the BIA set out its framework to determine whether an applicant was firmly resettled. First, to satisfy the requirement of showing that the firm-resettlement bar may apply, the government “bears the burden of presenting prima facie evidence of an offer of firm resettlement.” Id. at 501. To make a prima facie showing, the government “should first secure and produce direct evidence of governmental documents indicating an alien‘s ability to stay in a country indefinitely.” Id. “Such documents may include evidence of refugee status, a passport, a travel document, or other evidence indicative of permanent residence.” Id. at 501-02 (emphasis added). If
The applicant can rebut the prima facie evidence by “showing by a preponderance of the evidence that . . . an offer [of firm resettlement] has not, in fact, been made or that he or she would not qualify for it“—for example, by presenting evidence “regarding how a law granting permanent residence to an alien is actually applied and why the alien would not be eligible to remain in the country in an official status.” Id. at 503. If the BIA determines that the applicant firmly resettled, the applicant bears the burden to show by a preponderance of the evidence that he qualifies for an exception to firm resettlement under
The BIA concluded that the government‘s prima facie burden was satisfied by Petitioner‘s Angolan passport. See id. at 501-02. Petitioner argues, however, that because he retained his Congolese citizenship and the Angolan passport was obtained fraudulently (he used the false name of his “adoptive” Angolan family to acquire it) it did not suffice. We disagree.
In Matter of D-X- & Y-Z-, 25 I. & N. Dec. 664, 665 (BIA 2012), the BIA held that the applicant‘s “Permit to Reside in Belize” was prima facie evidence of an offer of firm
Petitioner does not challenge the decision in Matter of D-X- & Y-Z- but asks us to read it to hold that unless a fraudulently obtained document had been used for exit and reentry of the country that issued it, and enabled the holder to remain indefinitely, the fact that the document was fraudulent rebuts the prima facie case. But that overreads both Matter of D-X- & Y-Z- and Matter of A-G-G-, which characterize the government‘s burden as only having to prove the applicant‘s ability to stay in the country, without mention of reentry. See Matter of D-X- & Y-Z-, 25 I. & N. Dec. at 665 (requiring evidence “indicating an alien‘s ability to stay in a country indefinitely“); Matter of A-G-G-,
In this case, we hold that there was sufficient evidence to support the BIA‘s determination that the government had presented a prima facie case and Petitioner had not rebutted that case by a preponderance of the evidence. Petitioner‘s Angolan passport allowed him to lеave Angola, travel to and enter Brazil, and obtain and renew his Brazilian visa, certainly indicating its facial validity. He advances no evidence that the passport was not issued by the Angolan government, that it had ever been treated as invalid, or that he would be denied reentry or be unable to remain in Angola with it. On the contrary, at his merits hearing he did not contest the statements by the DHS attorney and the IJ that he had become a citizen of Angola; he responded only that his actions were so that he could ultimately get to this country and he still considered himself Congolese.
Petitioner next contends that he has shown by a preponderance of the evidence that an exception to the firm-resettlement bar applies. See Matter of A-G-G-, 25 I. & N. Dec. at 503. A person is not considered firmly resettled if he establishes:
(a) That his or her entry into that country was a necessary consequence of his or her flight from persecutiоn, that he or she remained in that country only as long as was necessary to arrange onward travel, and that he or she did not establish significant ties in that country; or
(b) That the conditions of his or her residence in that country were so substantially and consciously restricted by the authority of the country of refuge that he or she was not in fact resettled.
The BIA ruled that Petitioner established significant ties to Angola because he lived there over a year, obtained citizenship through his “adoptive” Angolan family, and brought his wife and children to the country. It stated that “although [Petitioner] testified
Petitioner raises two additional arguments against the BIA‘s resolution of the firm-resettlement issue. First, he argues that the BIA improperly engaged in its own factfinding in determining that he did not establish the exception. Under the BIA‘s regulations and precedents, the BIA should not make independent factual findings. See
Petitioner next argues that the IJ denied him constitutional and statutory due process by not adequately developing the record on firm resettlement. The government does not dispute that an IJ has an affirmative duty to develop the record when the applicant is not represented. Although this court has not explicitly recognized this “affirmative” duty in a precedential decision, other circuits have. See Yang v. McElroy, 277 F.3d 158, 162 (2d Cir. 2002) (“[T]he IJ . . . unlike an Article III judge, is not merely the fact finder and adjudicator but also has an obligation to establish the record.” (citing
To prevail on this argument, Petitioner must identify evidence that the IJ should have elicited that would have altered the BIA‘s finding that he was firmly resettled in Angola. See Berrum-Garcia v. Comfort, 390 F.3d 1158, 1165 (10th Cir. 2004) (requiring
C. Withholding of Removal
An applicant seeking withholding of removal must “establish a clear probability of persecution in that country on the basis of race, religion, nationality, membership in a particular social group, or political opinion.” Elzour, 378 F.3d at 1149 (citing
1. Past Persecution
The BIA concluded that Petitioner‘s “perceived need to hide for short periods of time in the DRC and his resettlement in Angola did not constitute past ‘persecution,‘” even accepting his testimony that the government looked for him after the 2013, 2014, and 2015 demonstrations. CAR 5. The BIA further noted that Petitioner testified before the IJ “that he was not harmed or personally threatened with violence in the DRC.” CAR 5. On appeal Petitioner contends the BIA erred by effectively concluding he was not persecuted because he was never physically harmed. But the BIA did not rely on any physical-harm requirement; rather, it merely determined that Petitioner had not experienced persecution by going intо hiding for fear of being arrested or otherwise harmed. We see no error.
Petitioner relies on our statement that threats can “constitute actual persecution . . . when they are so immediate and menacing as to cause significant suffering or harm in themselves.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003). But that standard is very difficult to satisfy. Vatulev said that “only rarely” do threats constitute actual persecution, id., and in neither of the two cases we cited in support of our statement—Mendez-Gutierrez v. Ashcroft, 340 F.3d 865, 869 n.6 (9th Cir. 2003), and Boykov v. INS, 109 F.3d 413, 416 (7th Cir. 1997)—did the court decide that the threats alone constituted persecution. Indeed, the cited footnote in Mendez-Gutierrez included
We note, however, that this does not mean that Petitioner‘s account of why he fled the DRC is irrelevant. As we stated in Vatulev, “[U]nfulfilled threats are still properly considered in determining whether a petitioner has a reasonable fear of future persecution.” Vatulev, 354 F.3d at 1210. In particular, as we explain below, we are remanding this case to the BIA for further consideration of Petitioner‘s claim that his fear of future persecution is based on a pattern or practice of the DRC government, and his testimony is relevant on that issue.
Petitioner also contends that the IJ failed to sufficiently develop the record on past persecution. We disagree. The IJ, together with the government attorney, adequately asked questions that gave Petitioner the opportunity to provide the testimony he claims should have been elicited. For example, he argues that he had no chance to explain that state security officials repeatedly searched for him after he participated in opposition marches. But he was asked multiple times what happened to him, if anything, because of the marches he participated in. Petitioner also claims that he was not prompted to share
2. Future Persecution
“The restriction statute is satisfied by a showing that it is more likely than not that the alien would be subject to persecution on one of the specified grounds upon returning to [his] country of origin.” Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005) (internal quotation marks omitted). While an applicant who demonstrates past persecution is entitled to a presumption of future persecution, see
The BIA rejected any claim based on the first alternative—an individualized risk of harm. It ruled that Petitioner did not demonstrate a clear probability of future persecution because he could not show “a continued government interest in him since his departure from the DRC in 2015.” CAR 5. It further observed that Petitioner‘s ability to return to a relatively nоrmal life in the DRC after his participation in the 2013 and 2014 marches undermined his claim. Petitioner does not suggest that the BIA overlooked evidence of individualized risk, but he argues that having to prove that the DRC government still has an interest in him was “an impossible standard” given his inability to obtain evidence while detained in the United States. Aplt. Br. at 41. If there had been interest in him, however, one would expect that to be apparent to his family and
Petitioner fares better on his argument that he has made a showing of future persecution based on a pattern or practice of persecution. The BIA did not address whether the evidence was sufficient to establish a pattern-оr-practice claim. It stated its ruling only in terms of individualized risk. See CAR 5 (“[Petitioner] has not provided sufficient evidence to demonstrate a continued government interest in him since his departure from the DRC in 2015, so as to establish that he will more likely than not face future persecution.” (emphasis added)). The government argues that Petitioner failed to exhaust a pattern-or-practice claim by not presenting it to the BIA. See Torres de la Cruz v. Maurer, 483 F.3d 1013, 1017 (10th Cir. 2007) (“We have jurisdiction only over those claims that were presented to the BIA.“);
Petitioner contended in his first BIA brief that the IJ‘s findings on the likelihood of future persecution were incorrect because:
As Mr. Matumona‘s testimony and the country conditions evidence demonstrate, the Congolese government continues to subject opposition activists and political opponents to arbitrary arrests, disappearances, torture, and death.... Based on the current country conditions, Mr. Matumona, as a community organizer for the UDPS, has a well-founded fear of future persecution even two years after having left the country. . . .
Based on the past threats and psychological abuse [he] has suffered, along with the current country conditions evidence that the government continues to target opposition activists with impunity clearly establishes that [he] has a well-founded fear of persecution. And this evidence also establishes that he can meet the higher “clear probability” standard of future persecution in the withholding of removal context.
In his brief on remand to the BIA, Petitioner repeated his argument that the IJ erred in assessing future persecution because:
Country-conditions evidence showed that the DRC continues to target UDPS members. For example, the State Department‘s country report specifically discussed a 2016 assault on the UDPS, in which security forces fire-bombed UDPS headquarters, killing eleven members, seven of whom “burned to death, possibly after being tortured and hacked with machetes.” (ROA-385). Mr. Matumona‘s own experiences were consistent with this objective evidence. Accordingly, the BIA erred in finding that he did not face a clear probability of persecution if returned to the DRC.
CAR 37.
When the BIA “has failed to address a ground raised by an applicant in support of [his] claim, we should ordinarily not reverse on that ground but should instead remand if the ground appears to have any substance.” Niang v. Gonzales, 422 F.3d 1187, 1197 (10th Cir. 2005). On remand the BIA can address whether the pattern-or-practice issue
D. Additional Procedural Arguments
Petitioner raises additional claims that he is entitled to relief because of violations of his due-process and statutory procedural rights. As a matter of due process, aliens are entitled to “the opportunity to be heard at a mеaningful time and in a meaningful manner.” Schroeck v. Gonzales, 429 F.3d 947, 952 (10th Cir. 2005) (internal quotation marks omitted). To prevail on a due-process challenge, the petitioner must show prejudicial error. See Berrum-Garcia, 390 F.3d at 1165.
First, Petitioner claims that his inability to understand and speak English impeded his ability to present his case and the IJ should have taken steps to enable him to adequately proceed. But the factual record belies this assertion, with respect to both his asylum application and the merits hearing. There was nothing more for the IJ to do regarding Petitioner‘s application. After Petitioner expressed at his initial hearing his concern about having to complete his application in English, the IJ stated that “we‘ll probably have to find someone to help you,” and that this would be discussed further at Petitioner‘s next master-calendar hearing. CAR 441. But by the time of that hearing,
Petitioner next claims that the conditions of his confinement obstructed his statutory right to counsel. See
Petitioner argues that he could not obtain an attorney because he did not have access to a phone. But the record indicates otherwise. He stated, “[W]hen you call people, they don‘t answer. They don‘t pick up the phone.” CAR 438. He points to his statement that he did not have a phone; but we read his comments as saying that his custodians took his personal phone and did not give him another one, not that they did not provide access to any phone.8
Finally, Petitioner complains that the BIA improperly rejected his due-process claims by stating that it lacked jurisdiction to address them. This complaint is misguided. The BIA addressed the merits of Petitioner‘s due-process arguments insofar as they concerned his challenge to the decision by the IJ. It then stated: “In addition, this Board does not have jurisdiction over complaints related to the conditions of [Petitioner‘s] detention, including the adequacy of his facility‘s telephones and law library. Our authority to protect an alien‘s rights cannot extend beyond the scope of our appellate jurisdiction.” CAR 154. All the BIA was saying is that its jurisdiction was limited to resolving Petitioner‘s appeal and it could not independently take action to correct problems with his detention. It is an appellate tribunal, not a venue for overseeing the treаtment of aliens. See
III. CONCLUSION
We AFFIRM on all grounds raised by Petitioner except that we REVERSE and REMAND for further proceedings to consider Petitioner‘s pattern-or-practice argument. We GRANT Petitioner‘s motion to proceed in forma pauperis.
Notes
(2) In evaluating whether it is more likely than not that the applicant‘s life or freedom would be threatened in a particular country on account of . . . political opinion, the asylum officer or immigration judge shall not require the applicant to provide evidence that he or she would be singled out individually for such persecution if:
- (i) The applicant establishes that in that country there is a pattern or practice of persecution of a group of persons similarly situated to the applicant on account of race, religion, nationality, membership in a particular social group, or political opinion; and
- (ii) The applicant establishes his or her own inclusion in and identification with such group of persons such that it is more likely than not that his or her life or freedom would be threatened upon return to that country.
Judge to Mr. Matumona: Well, are they allowing you to use the telephone, sir?
Mr. Matumona: They don‘t give me a phone. That‘s - okay. They don‘t give me a phone, that‘s why I think I‘m going to be mentally sick because I don‘t have anybody. I‘m in the prison right now. I don‘t have anybody to call, to help me. I don‘t have anybody.
Judge: Okay. So you don‘t know anybody in the United States, sir?
Mr. Matumona: No, I don‘t have anybody. On my phone, I have all the numbers, it turn off and then it‘s in their hands. Maybe I could have found a number over there and called but all my phone is in their hands.
Judge: Okay. And, sir, I want to make sure you have the legal aid list. Let me ask the officer to give you another copy of that if you haven‘t already received it.
Mr. Matumona: Okay, this list here, when you call people, they don‘t answer. They don‘t pick up the phone. A lot of people are calling them but nobody is picking up their phones.
CAR 437-38.