Kalubi v. Ashcroft

• Decision Date: 19 April 2004
• Docket Number: No. 02-73945.,02-73945.
• Citation: 364 F.3d 1134
• Parties: Joseph Tshibang KALUBI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

364 F.3d 1134

Joseph Tshibang KALUBI, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-73945.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 2004.

Filed April 19, 2004.

David C. Tarshes (argued) and Jennifer Warner, Davis Wright Tremaine, LLP, Seattle, Washington, for the petitioner.

Andrew C. MacLachlan (argued) and William C. Minick, Department of Justice, Civil Division, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals.

Before: O'SCANNLAIN, RYMER, and JAY S. BYBEE, Circuit Judges.

RYMER, Circuit Judge:

This is a rare appeal from the discretionary denial of asylum. The Board of Immigration Appeals (BIA) en banc granted the application of Joseph Kalubi, a native and citizen of the Democratic Republic of Congo, for withholding of removal but denied asylum as a matter of discretion. In a split decision, the BIA held (among other things) that although the determination of the immigration judge (IJ) that Kalubi's testimony was not forthcoming was insufficient to justify an adverse credibility determination under the law of the Ninth Circuit, this finding could support the discretionary denial of asylum. We disagree. If an applicant's testimony on an issue is found credible for purposes of determining whether he is eligible for asylum, he cannot be found incredible on the same issue for purposes of determining whether he is entitled to asylum. The BIA also dismissed its obligation under 8 C.F.R. § 208.16(e) to consider Kalubi's separation from his spouse as not "determinative." However, this factor need not be dispositive and we cannot tell upon what other basis, if any, the BIA discounted its importance. We conclude that the BIA erred in these respects, and therefore reverse and remand.

I

The following facts are taken as true because the IJ did not find that Kalubi's testimony was incredible, and the BIA made no findings of its own:¹ Kalubi is ethnically half Banyamulenge (a Tutsi tribe) and half Kasai. President Mobutu ruled Congo (formerly Zaire) from 1965 until 1997. In 1989 Kalubi learned from a friend who was a member of the national intelligence service, Service National d'Intelligence et de Protection (SNIP), that by obtaining a SNIP card for $10 Kalubi could avoid paying taxes and gain free admission to movies and sporting events. Kalubi was told that to get the card he would have to agree to bring SNIP information of any political activity against Mobutu, but he never did. Kalubi believed that SNIP was an organization which protected people and was in charge of issuing travel documents, passports, and authorizations to travel within the country; he did not learn that SNIP was actually a secret police organization that terrorized and persecuted opponents of Mobutu's regime until he read this in 1992.

A civil war erupted after President Kabila came into power in 1997 and the regime began to persecute Rwandans and ethnic Tutsis. Kalubi participated in a demonstration in August 1998 and signed a petition protesting the government's actions. Kalubi was arrested a week later because he was among the rebels and was a Mobutu supporter. He was imprisoned without a hearing and was placed in an over-crowded jail cell with harsh, unsanitary, and life-threatening conditions that were especially difficult for Kalubi because he had suffered from polio as a child. A human rights group pressured the prison to send Kalubi to a hospital for treatment. He escaped and was taken by a priest to Zambia, where he stayed from November 1998 to January 1999. On January 26, 1999, a different priest brought Kalubi to the United States using the Zambian passport of another individual, and instructed Kalubi to go to Canada the next day. Kalubi did not know anyone in the United States, but he knew a pastor in Canada.

Kalubi sought political asylum in Canada but it was denied on account of his membership in SNIP. Canada deported him to the United States. After the former Immigration and Naturalization Service (INS) commenced removal proceedings on June 9, 2000, Kalubi applied for asylum, withholding of removal, and protection under the Convention Against Torture.

The IJ stated that he could not articulate an adverse credibility finding as to Kalubi's testimony that would pass muster under Ninth Circuit analysis. The IJ found that Kalubi was not statutorily ineligible for relief as a persecutor under 8 U.S.C. § 1158(b)(2)(A)(i) because he was not personally involved in SNIP's persecutorial acts.² The IJ granted Kalubi withholding of removal and found that he was eligible for asylum because of past persecution. However, the IJ was not persuaded to grant discretionary relief because he did not believe Kalubi was truthful about the extent of his activities for SNIP and because an asylum seeker should not be encouraged to litigate in successive forums.

The BIA reversed the IJ's discretionary denial of asylum as lacking support in the record, but the BIA reconsidered that decision en banc and affirmed. The en banc majority found that Kalubi's membership in SNIP was the most serious adverse factor that militated against a favorable exercise of discretion, that the IJ's finding that Kalubi's testimony about his SNIP participation lacked candor supported the discretionary denial of asylum, and that another factor undermining a favorable exercise of discretion was Kalubi's decision to forum shop instead of applying for asylum in the United States upon his arrival in this country. The BIA also noted Kalubi's absence of family ties in the United States, his age and good health at the time of arrival, and the absence of countervailing humanitarian factors. One member concurred but expressed the view that "lack of candor" and "forum shopping" were inappropriate bases for the BIA's decision, while the dissenting members disagreed that any adverse factors were present.

Kalubi filed a timely petition for review.

II

The Attorney General has discretion to grant asylum to a refugee, that is, to an alien who is unwilling to return to his native country because of past persecution or a well-founded fear of future persecution on account of a prohibited ground. 8 U.S.C. §§ 1158(a), 1101(a)(42)(A). Asylum is a two-step process, requiring the applicant first to establish his eligibility for asylum by demonstrating that he meets the statutory definition of a "refugee," and second to show that he is entitled to asylum as a matter of discretion. See Kazlauskas v. INS, 46 F.3d 902, 905-06 (9th Cir.1995) (discussing the steps). We are only concerned here with the second step, because Kalubi established his eligibility for asylum by virtue of past persecution.

By statute, "the Attorney General's discretionary judgment whether to grant [asylum] shall be conclusive unless manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). Thus, when refugee status has been established, we review the Attorney General's grant or denial of asylum for abuse of discretion. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 9 (9th Cir.1984); see INS v. Jong Ha Wang, 450 U.S. 139, 144-45, 101 S.Ct. 1027, 67 L.Ed.2d 123 (1981).³

Kalubi posits an abuse of discretion in that the BIA chose not to comply with the law governing credibility determinations, it relied on the Canadian asylum proceedings, and it failed to address three important factors — the existence of past persecution and risk of future persecution, Kalubi's separation from his wife, and his disability — that support a grant of asylum. We consider each in turn.

III

A

First, Kalubi argues that the IJ and BIA are bound by the IJ's determination that Kalubi's testimony was credible under governing law. Ashcroft counters that the IJ and BIA were free to consider among other factors that Kalubi, although not wholly incredible, was not entirely forthcoming about his involvement in SNIP. In any event, Ashcroft contends that while the IJ recognized that he could not make an adverse credibility determination for purposes of finding Kalubi statutorily ineligible for asylum, the IJ was not persuaded by every aspect of Kalubi's testimony and so correctly denied asylum.

In this circuit adverse credibility findings in the eligibility phase must be express and the IJ must offer a "`specific, cogent reason for any stated disbelief.'" He, 328 F.3d at 595 (quoting Hartooni v. INS, 21 F.3d 336, 342 (9th Cir.1994)). Testimony must be accepted as true in the absence of an explicit adverse credibility finding. Kataria v. INS, 232 F.3d 1107, 1114 (9th Cir.2000); see Rodriguez-Matamoros v. INS, 86 F.3d 158, 159 (9th Cir.1996) (following this rule). And it is clearly our rule that "[w]hen the IJ makes implicit credibility observations in passing, ... this does not constitute a credibility finding." Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 658-59 (9th Cir.2003) (citing Aguilera-Cota v. INS, 914 F.2d 1375, 1383 (9th Cir.1990) ("The mere statement that a petitioner is `not entirely credible' is not enough.")).

The IJ recognized that he could not make an adverse credibility finding that would pass muster under the law of this circuit. Nevertheless, the IJ found that Kalubi's testimony that he never did anything to assist SNIP was not forthcoming or truthful. This is no different from a statement that Kalubi was "not entirely credible." The BIA, in turn, used this statement to support its discretionary denial of asylum. As it stated, "[a]lthough the determination that the respondent was not forthcoming was insufficient to justify an adverse credibility determination under the law of the Ninth Circuit, the Immigration Judge's finding that the respondent's testimony lacked candor supports the discretionary denial of asylum."⁴

The difficulty is that Kalubi cannot both be a member of SNIP who provided no political information and a member of SNIP who provided...