Kayembe v. Ashcroft

• Decision Date: 01 July 2003
• Docket Number: No. 02-1590.,02-1590.
• Citation: 334 F.3d 231
• Parties: Oscar KAYEMBE, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

334 F.3d 231

Oscar KAYEMBE, Petitioner v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-1590.

United States Court of Appeals, Third Circuit.

Argued on December 2, 2002.

July 1, 2003.

COPYRIGHT MATERIAL OMITTED

Rachelle Abrahami, (Argued), Marguerite Marty, American Friends Service Committee, Immigrant Rights Program, Newark, for Petitioner.

Robert D. McCallum, Assistant Attorney General Civil Division, Linda Wendtland, Assistant Director, Luis E. Perez (Argued), Christopher C. Fuller, John S. Hogan, Trial Attorney, Office of Immigration Litigation Civil Division, U.S. Department of Justice, Washington, Norah A. Schwarz, United States Department of Justice, Office of Immigration Litigation, Washington, for Respondent.

Before ROTH, SMITH, and CUDAHY,^* Circuit Judges.

OPINION OF THE COURT

CUDAHY, Circuit Judge.

Oscar Kayembe petitions for review of a Board of Immigration Appeals (BIA) decision denying him asylum. Kayembe claims that his Tutsi ethnicity and his father's political detention give him a well-founded fear of future persecution should he be returned to his previous home in the Democratic Republic of Congo. Because the Board of Immigration Appeals failed to make findings concerning Kayembe's credibility and failed to explain how Kayembe had not met his burden of proof for asylum eligibility, this court cannot undertake adequate review of the BIA decision. We therefore vacate the BIA's decision and remand for further proceedings.

I.

The appellant, Oscar Kayembe, was born in Kinshasa, Zaire, on March 18, 1979. Zaire was renamed the Democratic Republic of Congo (DRC) in May of 1997, following an overthrow of its government. Kayembe claims that his mother is of Tutsi ethnicity, and his father is of Luba ethnicity. His parents were divorced when he was nine years old, and he lived with his father, a diamond dealer, prior to his departure from the DRC.

Kayembe claims that his problems in the DRC began in August 1998 when then-president Laurent Desire Kabila began to discriminate against ethnic Tutsis in the DRC. Kayembe testified that, because he was part-Tutsi, he was subject to constant verbal abuse in his community and that government officials periodically subjected him to search, harassment and interrogation at his home. Kayembe further claims that after enrolling in a DRC university in September 1998, he was forced to leave the school in January 1999 due to persecution from peers and the faculty.

In January 2001, Kabila was assassinated, and his son, Joseph Kabila, became president of the DRC. Following the assassination, the DRC government sought out and detained persons suspected of having knowledge of, or involvement in, the assassination. Kayembe testified that in March 2001 he discovered that his father had been detained by the government. Kayembe also testified that he believed that his father had been detained for being a diamond dealer, and that the government suspected diamond dealers of being connected with the Kabila assassination. Kayembe has had no contact with his father since his father's detention.

Following his father's detention, Kayembe went into hiding. He testified that the DRC government considers family members of its opponents to be enemies, and that that concern caused him to fear for his own safety. With a counterfeit French passport, Kayembe made his way to the United States, where he was detained. He sought asylum, and proceedings on that application followed.

After being denied asylum by an Immigration Judge (IJ), Kayembe appealed to the Board of Immigration Appeals. The BIA denied Kayembe's appeal. This petition for review followed.

II.

We have jurisdiction to review final orders of the BIA pursuant to 8 U.S.C. § 1252. The Immigration and Naturalization Act (INA) gives to the Attorney General the discretionary power to grant asylum to an alien who qualifies as a "refugee" under 8 U.S.C. § 1101(a)(42)(A). See 8 U.S.C. § 1158(b)(1). Under § 1101(a)(42)(A) a person becomes eligible for "refugee" status by showing either past persecution or a well-founded fear of future persecution if returned to her prior country of residence based on "race, religion, nationality, membership in a particular social group, or political opinion." Kayembe's claim of refugee status is based on a fear of future persecution derived from his alleged Tutsi ethnicity and the imputation to him of anti-government political opinions via his father's association with the diamond industry in the DRC. See Balasubramanrim v. INS, 143 F.3d 157, 165 n. 10 (3d Cir.1998) (noting that a well-founded fear of persecution may be based on political opinions correctly or incorrectly imputed to the asylum seeker).

Whether or not Kayembe has demonstrated past persecution or a well-founded fear of future persecution is a factual question that we review under the substantial evidence standard. Chen Yun Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir.2002). We will uphold the findings of the BIA to the extent that they are supported by reasonable, substantial and probative evidence on the record considered as a whole, and will reverse those findings only if there is evidence so compelling that no reasonable factfinder could conclude as the BIA did. Id.

Our power of review, however, extends only to the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir.2001). Therefore, only if the BIA expressly adopts or defers to a finding of the IJ, will we review the decision of the IJ. Id. This principle is relevant here because the BIA made no finding on the issue of Kayembe's credibility. Although the BIA noted that the "Immigration Judge denied the respondent's claim finding that he was not credible," Administrative Record (A.R.) at 2, the BIA made no comment of its own regarding Kayembe's credibility. Nor did the BIA adopt or defer to the IJ's finding on the issue of credibility.¹ We are left, therefore, with no credibility finding to review.

III.

For the purposes of our review the credibility of Kayembe has not been determined. As a practical matter, therefore, we must proceed as if Kayembe's testimony were credible and determine whether the BIA's decision is supported by substantial evidence in the face of his assumed (but not determined) credibility. See, e.g., Briones v. INS, 175 F.3d 727, 728-30 (9th Cir.1999) (holding that petitioner's testimony, if credible, was sufficient to support asylum claim and remanding to the BIA for a credibility determination). If the BIA's decision can be found to be supported by substantial evidence, even if Kayembe's testimony is credible, then the absence of a finding on credibility is not significant to the disposition of the case.

A.

Kayembe's first argument contends that the BIA erred in not finding a well-founded fear of future persecution based on his alleged Tutsi lineage. This argument proceeds on two fronts: 1) Kayembe contests the BIA's finding that he has not proved his Tutsi ethnicity; and 2) Kayembe contests the finding that Tutsis are not subject to persecution in the DRC, based on their ethnicity. We will begin with the second part of his argument. Kayembe claims that the BIA failed to consider the record as a whole when it found that country conditions did not support Kayembe's fear of persecution in the DRC as a person of part-Tutsi origin, and that the BIA limited its analysis of persecution to "arrest and detention without charge." When the BIA rejected Kayembe's claim that as a person of part-Tutsi origin he would be subject to persecution, it cited a State Department Country Report that stated, "the government of the Congo is no longer engaged in the practice of arresting and detaining members of the Tutsi ethnic group without charge." A.R. at 3. Even assuming Kayembe to be credible with respect to his Tutsi lineage, the Country Report potentially constitutes substantial evidence to support the BIA's finding. See, e.g., Lal v. INS, 255 F.3d 998, 1023 (9th Cir.2001) ("Our case law well establishes `that the country report from our Department of State is the `most appropriate' and `perhaps best resource,' for determining country conditions. As such, the State Department report `provide[s] substantial evidence for the BIA's determination that the INS successfully rebutted the presumption of future prosecution.'") (citations omitted); Gonahasa v. INS, 181 F.3d 538, 542 (4th Cir.1999) ("In most cases, a State Department report provides ... substantial evidence."). Kayembe claims, however, that the State Department report contains "additional data about the treatment of Tutsis which should have been considered by the BIA since it is indicative of the societal and governmental attitude of Tutsis and the treatment of Tutsis in the DRC." Appellant's Br. at 25.

Kayembe is correct that the State Department Report cuts both ways. The following are some excerpts from the report:

Violence and discrimination against members of the Tutsi ethnic minority continued; however, the Government protected many Tutsis who were at risk.

* * * * * *

In July 2000, a Belgian Judge issued an arrest warrant against Congolese Foreign Minister Yerodia Abdoulaye after a number of Tutsis in Belgium claimed that Yerodia's radio broadcasts in August 1998 incited the populace to murder Tutsis randomly. A similar case was filed against Laurent Kabila in September 2000.

* * * * * *

The [International Committee of the Red Cross] regularly visited a facility in Kinshasa where the government provides shelter to Tutsis for their own protection.

* * * * * *

The government no longer followed a policy of arresting and detaining members of the Tutsti ethnic group without charge and merely on the basis of their ethnicity. Approximately 300 Tutsis who voluntarily entered a government protection site at the National Social Security Institute in Kinshasa remained there at year's end pending resettlement or reintegration into the community. However,...