HELENE N. WHITE, Circuit Judge. Herry Kiegemwe, Abraham Tembo, and Anthony Luambano (petitioners) petition for review of the decisions of the Board of Immigration Appeals (BIA) affirming the Immigration Judge's (IJ's) denials of asylum. On appeal, petitioners challenge the determination that they did not establish an objectively reasonable fear of future persecution. We grant the petitions for review and REMAND to the BIA for additional proceedings consistent with this opinion.
Petitioners, Tanzanian natives and then-teenage Boy Scouts, arrived in the United States along with a fourth teenage scout, Fikiri Lusingo, on valid six-month visas to attend the 2001 International Boy Scout Jamboree in Virginia. The four scouts left the Jamboree before it concluded, were reported missing and were the subject of extensive international press coverage (including coverage that referred to them by name and that labeled them as "disloyal" to Tanzania). They turned themselves in to local police, were incarcerated, and were turned over to federal officials.
The four scouts sought asylum, asserting that they would be subjected to harsh retaliatory treatment for embarrassing the Tanzanian government if forced to return. Lusingo's case proceeded separately in Pennsylvania and was resolved several years before the instant cases. Lusingo appealed the denial of his application for asylum to the Third Circuit, and the court granted the petition for review and remanded. Lusingo v. Gonzales, 420 F.3d 193 (3d Cir. 2005). On remand, the BIA reversed itself, concluding "upon further review of the record" that Lusingo was eligible for asylum dependent on required security checks.1 An IJ later granted Lusingo asylum.
Petitioners' three cases proceeded in tandem before an IJ in Detroit, Michigan. The IJ found petitioners credible and their fear of persecution subjectively reasonable, but concluded that they were ineligible for asylum because their applications were untimely and, alternatively, because they failed to demonstrate that their fear of persecution was objectively reasonable. Several of the IJ's reasons for so concluding had been expressly rejected by the Third Circuit in Lusingo and had prompted its remand to the BIA. In the instant cases, the BIA found petitioners' asylum applications timely butconcluded that substantial evidence supported the IJ's alternate conclusion that petitioners failed to demonstrate an objectively reasonable fear of persecution. The BIA's reasoning mirrored the analysis explicitly rejected by the Third Circuit in Lusingo. This court consolidated petitioners' appeals for purposes of argument.
Lusingo's case figures prominently in petitioners' arguments, and for good reason - petitioners were in all respects similarly situated to Lusingo and presented the same experts as had Lusingo. See n.7, infra.
On Lusingo's appeal of his affirmative application for asylum, the Third Circuit remanded to the BIA for further explanation of the basis for its decision:
Lusingo petitioned for asylum based upon his fear that he would be persecuted upon his return home because the Tanzanian government persecutes people who embarrass it. The testimony Lusingo produced during the ensuing removal hearing before the [IJ] included the declaration of Dr. Rakesh Rajani. Dr. Rajani's expertise on human rights in Tanzania was not disputed. His declaration states in pertinent part:
the government [of Tanzania] looks unfavorably on those who they perceive to have embarrassed the government or that simply reflect poorly on the government, especially in the eyes of the international
community . . . [Lusingo] . . . publicly embarrassed the Tanzanian government by disappearing from the Boy Scout Jamboree . . . which led to the involvement of the U.S. authorities and spurred wide spread media coverage both in the United States and in Tanzania. The Tanzanian government does not turn a blind eye to such embarrassing publicity, as it could mar their relationship with Western donors . . . if sent back to Tanzania, [Lusingo] is likely to be arrested and interrogated upon arrival, as the Tanzanian government is clearly quite interested in his case, as is shown from its statements to the American and African press. After he is arrested, he may be subject to beatings, indefinite detention, a prolonged trial.
Dr. Rajani also described Tanzanian jails and the type of torture and treatment endured by prisoners. According to his declaration, this includes: co-mingling of adults and children and the consequent sexual abuse of the children, cells covered withurine and feces, forced manual labor including carrying buckets of human excrement; and lack of due process. Dr. Rajani also explained that, given the unfavorable publicity, Lusingo could be subject to prolonged imprisonment under such conditions without actually being charged with any crime. He recounted an event in 2002 where 120 prisoners were held in a room designed to hold 30. Many of those prisoners died of suffocation. Dr. Rajani's declaration ended with the following statement:
[Lusingo] is at risk of the aforementioned conditions and abuse even if he is not ultimately convicted of a crime . . . . Fikiri would be held as a remand prisoner, where . . . he would endure appalling conditions and be vulnerable to sexual molestation and abuse by adult prisoners or detainees. Thus, [he] is likely to face abuse notwithstanding the outcome of his case if he is forced to return to Tanzania and is prosecuted.
When asked to describe the attitude of the Tanzanian government toward those believed to be disloyal, Dr. Rajani responded: the government takes a very dim view of the people who are disloyal. It has very little tolerance for them . . . dissent is seen as unpatriotic, it is seen as treacherous, and people who are perceived to have been disloyal to the government are treated very harshly by the government." He also declared that Lusingo's departure from the Boy Scout Jamboree had received "quite a bit of coverage." He lived in Tanzania at the time and recalled "vividly that there was a strong sense in Tanzania that what these young people have done was, was extremely disloyal and you got a palpable sense the government was angry with their actions."
Dr. Rajani opined that it was likely that the Tanzanian government would jail Lusingo upon his return and that he would be mistreated in much the same manner the government treats the street children who are also a source of embarrassment. Dr. Rajani believed that the Tanzanian government was angry, "especially since his situation is so unusual for generating so much media interest in both countries." Dr. Rajani concluded that Lusingo had a "reasonable and legitimate fear of returning to Tanzania," because it was likely that he would be "detained, interrogated, and in that process would be held in prison conditions that would be detrimental to his health and probably life threatening." Dr. Rajani's testimony was not rebutted.
Lusingo also produced a declaration from Loren Landau, Ph.D., a Research Coordinator of the Witwaterstand's Forced Migration Studies Program in Johannesburg, South Africa. Dr. Landau [] had first-hand knowledge of prison conditions in Tanzania. He opined that Lusingo had a "legitimate and reasonable fear of imprisonment if returned to Tanzania, where he would likely be commingled withadults and would certainly face horrific conditions . . . [because] . . . the government continues to act with disproportionate force against individuals or groups who oppose the government or embarrass the government in any way."
. . . .
Documentary evidence that was admitted corroborated Lusingo's evidence. U.S. State Department Country Reports on Human Rights Practices in Tanzania described that country's jails as being among the worst in Africa. The Report also confirmed that the Tanzanian government has little appetite for dissent. The human rights record was "poor" and includes arbitrary arrests, torture, beatings, and horrendous prison conditions.
. . . .
The BIA reasoned: "[Lusingo's] experts do not have a good analogy of [his] situation, insofar as the mistreatment of street children in Tanzania does not have much relevance to [his] claim. [Lusingo] comes from a stable family, with both parents employed, and he attended school until he left Tanzania. While such media attention may have embarrassed the Tanzanian Government, we do not find that it gives rise to a well-founded fear of persecution."
The Board also reasoned that the fact that Lusingo's parents had neither been arrested nor harmed even though Lusingo had testified that they know of his desire to remain in the United States from the outset, undermined Lusingo's claim of a wellfounded [sic] fear of persecution upon his return home. The Board thus denied relief, and this Petition for Review followed.
. . . .
The BIA's conclusion that Lusingo's claim was not objectively reasonable was based primarily upon the analogy to street children that also troubled the IJ. The Board explained: ["][Lusingo's] experts do not have a good analogy to [his] situation, insofar as the mistreatment of street children in Tanzania does not have much relevance to [Lusingo's] claim. [He] comes from a stable family, with both parents employed, and he attended school until he left Tanzania. While such attention may have embarrassed the Tanzanian Government, we do not find that it gives rise to a well founded fear of
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