777 F.3d 199 (4th Cir. 2015), 13-2064, Ilunga v. Holder

Docket Nº:13-2064
Citation:777 F.3d 199
Opinion Judge:GREGORY, Circuit Judge:
Party Name:FAUSTIN MUKADI ILUNGA, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent
Attorney:Dana Joo Moss, COOLEY LLP, Washington, D.C., for Petitioner. Catherine Bye, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Stuart F. Delery, Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUST...
Judge Panel:Before GREGORY, FLOYD, and THACKER, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Floyd and Judge Thacker joined.
Case Date:January 27, 2015
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
SUMMARY

Petitioner, a citizen of the Democratic Republic of the Congo, appealed the denial of his application for asylum and protection under the Convention Against Torture (CAT). Petitioner claimed past persecution based on his membership in a political party called the Movement for the Liberation of the Congo. The IJ found that petitioner was not credible and the BIA affirmed. The court held that the... (see full summary)

 
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777 F.3d 199 (4th Cir. 2015)

FAUSTIN MUKADI ILUNGA, Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General, Respondent

No. 13-2064

United States Court of Appeals, Fourth Circuit

January 27, 2015

Argued October 28, 2014.

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

ARGUED:

Dana Joo Moss, COOLEY LLP, Washington, D.C., for Petitioner.

Catherine Bye, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Stuart F. Delery, Assistant Attorney General, Cindy S. Ferrier, Assistant Director, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before GREGORY, FLOYD, and THACKER, Circuit Judges. Judge Gregory wrote the opinion, in which Judge Floyd and Judge Thacker joined.

OPINION

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GREGORY, Circuit Judge:

Faustin Mukadi Ilunga, a citizen of the Democratic Republic of the Congo, appeals the denial of his application for asylum and protection under the Convention Against Torture (" CAT" ). We hold that the rejection of Ilunga's asylum application, largely on the basis of an adverse credibility finding, was not supported by substantial evidence. We thus remand for further proceedings.

I.

The following description of Ilunga's travails in the Congo and his journey to the United States is based on his asylum application, testimony before the Immigration Judge (" IJ" ), and corroborating documentation in the record. The IJ's adverse credibility determination necessarily called into question the trustworthiness of many of the facts alleged.

A.

Before fleeing to the United States, Ilunga lived in the Congo with his wife and five children. In 2003, he joined the Movement for the Liberation of the Congo (" MLC" ), a political party that actively opposed President Joseph Kabila in the country's 2006 elections. Ilunga was a paid employee and member of the party, participating in highly visible campaign activities and public appearances in the city of Lubumbashi.

After the MLC candidate lost the 2006 election to President Kabila, Ilunga's political activism endangered him. Local police and others loyal to President Kabila threatened Ilunga's life and vandalized his home. The police also killed two MLC supporters with whom Ilunga worked during the campaign. Increasingly fearful, Ilunga wrote a letter to his childhood friend living in neighboring Zambia, Bernard Kabeya, expressing his anxiety while accusing the president of assassinating his father.

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The letter was intercepted by government agents working for the Congolese intelligence agency, the Agence Nationale de Renseignements (" ANR" ). On December 23, 2006, an undercover ANR agent went to Ilunga's home, blindfolded him, and drove him to prison where he was interrogated. Ilunga admitted that he authored the letter, and the ANR agent stated that Ilunga " would be killed" as a result. A.R. 61.1

The government sent Ilunga to prison where he spent more than a month in a small cell shared with Jean Nkongolo Kalala. Ilunga suffered daily torture. Prison guards stabbed him and poured battery acid in the wounds. They shocked him with an electrical club, routinely whipped him, and raped him.

On February 2, 2007, Ilunga and Kalala escaped from prison with the help of a guard whom they paid off. The pair fled to Zambia in the bed of a truck hauling copper. While Ilunga remained in Zambia, the government tortured his family, raped his wife, and burned his home.

On June 22, 2008, Ilunga and Kalala boarded a plane for the United States. Ilunga's wife and children fled to a Zambian refugee camp.

B.

Ilunga arrived at Washington Dulles International Airport without a visa. He told an immigration officer that he " left [his] country for political reasons" and was " looking for asylum." A.R. 2006. He further specified that he was " afraid to go back home" and had " no doubt" that he would be harmed again if he returned to the Congo. A.R. 2006.

At a credibility hearing three weeks later, Ilunga attested to his party membership, the threats against him as a result of his political activity, the circumstances surrounding his arrest, the torture he endured in prison, and his escape. The asylum officer determined that Ilunga established a credible fear of persecution.

C.

In May 2009, Ilunga filed his application for asylum, withholding of removal, and CAT protection. The application is consistent with the account he gave at the credibility hearing, and it provides greater detail about the arrest and torture in prison, including incidents when Ilunga was stabbed, shocked with an electrical device on the genitals, sexually assaulted, and beaten.

For supporting documentation, Ilunga provided:

o His affidavit, detailing his abuse and escape;

o A medical affidavit from Dr. Michael Viola, who examined Ilunga in the United States and found that: (1) Ilunga's " reporting of his torture history and symptoms are notable because of his consistent and precise description of specific details and the correlation of his history to his present symptoms and physical findings" ; (2) Ilunga's psychological symptoms are consistent with moderate post-traumatic stress disorder (" PTSD" ); (3) Ilunga's physical injuries are consistent with cuts with a sharp object, and his chest wound is consistent with " delayed healing of a wound secondary to infection or the reported pouring of Page 205

acid into the cut" ; and (4) Ilunga's fear of return to the Congo is credible;

o An affidavit from Kalala, Ilunga's cellmate, that is consistent with Ilunga's statements but does not speak to the specific torture that Ilunga suffered in prison; o An affidavit from Bernard Kabeya, Ilunga's friend in Zambia, who confirmed Ilunga's account of his time in that country; o Extensive documentation of country conditions in the Congo, including descriptions of politically-motivated violence, state-sponsored executions, forced disappearances, torture in prison, and impunity for rape; o Ilunga's reissued MLC membership card and a letter from the MLC expressing concern " about his survival" and attesting that his " activism on behalf of democracy in our country has caused him a lot of trouble from the security officers who are in power (ANR)" ; o Photographs purporting to show scars on Ilunga's body caused by his torture in prison; o Letters from Ilunga's wife and family warning about conditions in the Congo and detailing their flight to Zambia; and o The refugee card, and registration attestation, issued to Ilunga's wife by the United Nations High Commissioner for Refugees (" UNHCR" ).

D.

Ilunga and Kalala testified at Ilunga's removal hearing. Ilunga's primary language is Tshiluba, but he claimed to speak French fluently, and a contract French interpreter translated the proceedings. After reviewing the two days of testimony and the record, the IJ found that Ilunga was not credible and denied his application for asylum, withholding of removal, and CAT relief.

Three pieces of testimony were central to the IJ's credibility determination. First, the IJ cited supposedly inconsistent statements about the location of Ilunga's torture inside the prison, and whether Kalala witnessed it. Ilunga, the IJ observed, stated that he was beaten away from his cell and that only guards witnessed the beatings. In seeming incongruity, Kalala's translated testimony provides that " these things took place in the same room where they spent their nights" and that Kalala " was there" when guards stabbed Ilunga. The IJ determined that such an inconsistency " cannot be explained by a translation error, particularly as one claimed to have witnessed the beatings in the same room in which they slept while the other testified to have been taken to a different part of the prison and to have been beaten with only guards present."

Second, the IJ found inconsistencies in testimony regarding the prayer practices of Ilunga and Kalala. Ilunga, the IJ determined, was initially non-responsive when asked exactly how the cellmates prayed together, and he was vague when pressed about the timing and content of the prayers. Moreover, the IJ claimed Ilunga was " hesitant and vague" when answering questions about the frequency and timing of prayer.

Third, the IJ agreed with the government that there were material inconsistencies in the dates on the MLC documentation provided. The date on the membership card and the letter, the IJ determined, was the day before Ilunga's detention, even though Ilunga claimed that his wife obtained the documents much later while he was living in the United States. Moreover, the IJ believed it was significant that the MLC letter did

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not mention Ilunga's arrest, " which would be expected if it had been written when claimed and if there was a typographical error in the date."

Regarding the testimony as a whole, the IJ found that Ilunga's demeanor also supported the adverse credibility finding, noting in a single sentence that Ilunga was non-responsive and appeared uncomfortable answering some questions. The IJ added in passing that " DHS has also raised some valid concerns regarding plausibility and vagueness."

Finding Ilunga incredible, the IJ...

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