Malonga v. Mukasey

• Decision Date: 03 November 2008
• Docket Number: No. 07-3443.,07-3443.
• Citation: 546 F.3d 546
• Parties: Noel MALONGA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

546 F.3d 546

Noel MALONGA, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-3443.

United States Court of Appeals, Eighth Circuit.

Submitted: September 26, 2008.

Filed: November 3, 2008.

Timothy E. Wichmer, argued, Rachel Groneck, on the brief, St. Louis, MO, for petitioner.

Thomas Henderson Dupree, argued, Andrew Oliveira, on the brief, U.S. Dept. of Justice, Washington, D.C., for respondent.

Before RILEY, BRIGHT, and MELLOY, Circuit Judges.

BRIGHT, Circuit Judge.

Noel Malonga petitions for review of the decision of the Board of Immigration Appeals ("BIA") denying his claims for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Having jurisdiction under 8 U.S.C. § 1252(a), we deny Malonga's petition as it relates to his asylum and CAT claims, but grant the petition on his withholding of removal claim. We vacate the BIA's decision refusing to withhold removal and remand for new findings.

I. BACKGROUND

A. Procedural Background

Malonga, a native and citizen of the Republic of Congo ("Congo"), entered the United States in August 1993 as an exchange visitor. His visa entitled him to stay in this country until August 1999. In July 2001, Malonga filed an application for asylum, withholding of removal, and CAT protection, asserting that he had been persecuted on account of his ethnicity and political opinion in Congo. In September 2001, the Immigration and Naturalization Service ("INS") charged Malonga with being removable in accordance with 8 U.S.C. § 1227(a)(1)(B). At a hearing, Malonga admitted the allegations in the charging order and conceded removability.

In October 2001, Malonga appeared before an immigration judge ("IJ") and provided oral and documentary evidence in support of his requests for asylum, withholding of removal, and CAT protection. In an oral decision in October 2002, the IJ found that Malonga was removable as charged and denied all relief. The IJ denied Malonga's application for asylum because it was untimely filed and because Malonga's explanation for the untimely filing-his depression-was not an "extraordinary circumstance." Alternatively, the IJ denied Malonga asylum because he had not shown that he had suffered past persecution and failed to show that he had a well-founded fear of future persecution. The IJ also concluded that the Kongo ethnicity was not a particular social group and that Malonga had not been persecuted on account of his political opinion. Next, the IJ denied Malonga's motion for withholding of removal because he "failed to establish a clear probability of persecution for the same reasons that" the IJ had denied asylum. Finally, the IJ found that Malonga was not entitled to protection under the CAT because he was not more likely than not to be tortured if returned to Congo. The IJ made no express findings regarding Malonga's credibility.

Malonga appealed the IJ's decision to the BIA, which affirmed without opinion in April 2004. Malonga filed his initial petition for review in this court in May 2004 and subsequently moved for an order remanding the case to the BIA in light of a change in the BIA's policy in similar affirm without opinion cases. This court granted the motion, remanding the case to the BIA with instructions to "indicate the grounds upon which it affirms the [IJ's] decision."

In September 2007, the BIA again affirmed the IJ's decision, stating that Malonga's asylum application was untimely and that he had not established extraordinary circumstances necessary to excuse the untimely application. The BIA also stated that it adopted and affirmed the IJ's findings with respect to Malonga's ineligibility for withholding of removal and protection under the CAT. In October 2007, Malonga filed this petition for review of the BIA's final order of removal.

B. Factual Background

In Malonga's hearing with the IJ, he introduced evidence that he is a member of the Lari ethnic group of the Kongo tribe, which is a group identifiable by accent, dialect, home region, and surname. Malonga further contended that he has a long history of supporting democratic reforms in Congo, and that he is or has been a member of various social and professional groups that oppose the Congolese government, including the Congolese Movement for Democracy and Integral Development and the Collective of Congolese Scholars Native from Pool.

In 1971, when Malonga was fourteen, he participated in a demonstration against President Marlen Ngouabi. Malonga stated that government forces beat him as they attempted to break up the demonstration and that he sustained injuries that required hospital treatment. In 1974, Malonga participated in another demonstration that the military forcibly disrupted. Malonga claimed that police arrested him in 1977 for attending an opposition political meeting, detained him for forty-eight hours, and beat him.

In 1990, Malonga, who had become a director of a state-controlled farm, ordered his employees to strike as part of a larger national strike. Malonga testified that officials in the administration of President Denis Sassou-Nguesso demoted him, transferred him to Congo's capital of Brazzaville, and ordered him to sit at a desk all day doing nothing.

In 1993, Malonga took part in an anti-government demonstration against the newly elected President Pascal Lissouba, which soldiers dispersed with violence. Four protestors were killed and Malonga received bruises as a result of the protest, but he testified that he was not seriously hurt. That evening, soldiers came to Malonga's house in search of him. When the soldiers could not find Malonga, they marked his house with a cross (allegedly indicating that it should be destroyed) and wrote "we will get your skin" as a threat. Malonga also received threats from Lissouba supporters at work.

Malonga testified that he had difficulty obtaining travel documentation in 1993 because a supervisor refused to sign his departure papers, telling him that he was a "trouble maker[]" and that he should be required to stay in Congo and "face the consequences" of what he was "doing." Ultimately, Malonga obtained the necessary signatures and traveled to the United States to study under a program funded by the United States Agency for International Development. Malonga completed his master's degree at Southern Illinois University in 1999.

After his arrival in the United States, Malonga claims that government forces destroyed his house. Malonga also testified that he lost contact with his wife, child, and parents in Congo's 1996 civil war and that he believes that his parents are dead. Malonga testified that he feared returning to Congo because he believed that he would be persecuted. Malonga also introduced reports from the State Department and Amnesty International, which generally describe the poor human-rights conditions in Congo.

II. DISCUSSION

"Only the BIA order is subject to our review, including the IJ's findings and reasoning to the extent they were expressly adopted by the BIA." Osonowo v. Mukasey, 521 F.3d 922, 926-27 (8th Cir.2008). But we review both decisions when the BIA adopts the IJ's decision but adds its own reasoning, as here. See Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006).

We review questions of immigration law de novo. Tang v. INS, 223 F.3d 713, 718-19 (8th Cir.2000). We review an IJ's factual determinations under the substantial-evidence test, which requires that those determinations be supported by reasonable, substantial, and probative evidence. Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir.2002). We will not reverse factual findings unless "the petitioner demonstrates that the evidence was so compelling that no reasonable fact finder could fail to find in favor of the petitioner." Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir.2005).

A. Timeliness of Malonga's Application for Asylum

Malonga first challenges the IJ's refusal to excuse his untimely application for asylum. An applicant for asylum must demonstrate by clear-and-convincing evidence that the applicant filed the application within one year of the applicant's arrival or April 1, 1997, whichever is later. See 8 U.S.C. § 1158(a)(2)(B). The one-year period may be excused only if the applicant can demonstrate "changed circumstances" or "extraordinary circumstances." 8 U.S.C. § 1158(a)(2)(D).

Here, Malonga does not dispute the fact that his application was untimely filed, and the IJ determined that Malonga's excuse, his depression, was insufficient to qualify as an "extraordinary circumstance." The INS argues that this court lacks jurisdiction to review the IJ's decision because of 8 U.S.C. § 1158(a)(3), which provides that "[n]o court shall have jurisdiction to review any determination of the Attorney General under paragraph (2)." Malonga attempts to avail himself of appellate review by arguing (1) that the district court applied an incorrect legal standard in determining whether "extraordinary circumstances" excused his untimely application and (2) that recent amendments to federal law confer this court jurisdiction over this issue.

We conclude that we are precluded from reviewing the IJ's refusal to excuse Malonga's untimely application. This circuit has routinely held that whether an untimely application should be excused involves the discretionary judgment of the Attorney General and, as such, is unreviewable. See, e.g., Mouawad v. Gonzales, 485 F.3d 405, 410-11 (8th Cir.2007); Jallow v. Gonzales, 472 F.3d 569, 571 (8th Cir.2007); Ignatova v. Gonzales, 430 F.3d 1209, 1214 (8th Cir.2005). Furthermore this court has already rejected Malonga's argument that the REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231, 310 (May 11, 2005), granted this court the ability to review such claims.¹ See Mouawad, 485 F.3d at 411. Because the decision to excuse an untimely filed asylum application is discretionary and because this court has already determined that the REAL ID Act did...