Lusingo v. Gonzales

• Decision Date: 19 August 2005
• Docket Number: No. 03-4418.,03-4418.
• Citation: 420 F.3d 193
• Parties: Fikiri LUSINGO, Petitioner v. <SMALL><SUP>*</SUP></SMALL>Alberto GONZALES, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Third Circuit

Page 193

420 F.3d 193

Fikiri LUSINGO, Petitioner v. ^*Alberto GONZALES, Attorney General of the United States, Respondent.

No. 03-4418.

United States Court of Appeals, Third Circuit.

Argued March 8, 2005.

August 19, 2005.

Stephen J. Spiegelhalter (Argued), Latham & Watkins, Washington, D.C., for Petitioner.

Christopher C. Fuller, Linda S. Wernery, Douglas E. Ginsburg, John M. McAdams, Jr., Lyle D. Jentzer, (Argued), United States Department of Justice, Office of Immigration Litigation, Ben Franklin Station, Washington, D.C., for Respondent.

Before NYGAARD,¹ McKEE and RENDELL, Circuit Judges.

OPINION

McKEE, Circuit Judge.

Fikiri Lusingo petitions for review of the decision of the Board of Immigration Appeals affirming the Immigration Judge's denial of asylum. Although the BIA disagreed with the Immigration Judge's analysis of much of the evidence Lusingo presented during his removal hearing, the BIA ultimately affirmed the IJ's order denying relief. On appeal, Lusingo argues that the BIA's ruling denying his asylum claim is "objectively unreasonable."² For the reasons that follow, we agree and we will grant the petition for review and remand for additional proceedings consistent with this opinion.

I. Background.

Lusingo is a native and citizen of Tanzania. He speaks Swahili, and very little English. On July 23, 2001, when Lusingo was sixteen years old, he entered the United States as a visitor for pleasure in order to participate in the International Boy Scout Jamboree in Fredericksburg, Virginia. His visa allowed him to remain in the United States until January 23, 2002. Prior to coming to the United States, Lusingo lived with both parents and attended school.

However, Lusingo did not remain at the jamboree. Instead, he and two other scouts left the jamboree and went to the home of a relative of one of the boys. They were eventually reported missing, and their disappearance received extensive international media coverage.

When Lusingo learned of the extensive news reports of his disappearance, he became frightened and reported to a police station in Maryland. The police transferred him to the custody of the Immigration and Naturalization Service.³ During the ensuing INS interrogation, Lusingo expressed fear that he would face persecution if returned home because the extensive media coverage of his disappearance would no doubt have embarrassed the government of Tanzania. Lusingo had come to the United States with hopes of converting his visa into a student visa so that he could remain here and receive an education. He therefore had no reason to fear persecution until the media blitz occurred. The extensive coverage of his disappearance resulted in the broadcast of a substantial amount of unflattering information about the Tanzanian government. This included reports that Lusingo feared his government would retaliate by imprisoning him upon his return home, and by economic retaliation against his family. Reports of the possibility of Lusingo's likely imprisonment upon his return mentioned that "it is common for boys to be sexually exploited while in jail in Tanzania."

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 Immigration Judge included the declaration of Dr. Rakesh Rajani. Dr. Rajani's expertise on human rights in Tanzania was not disputed. His declaration states in 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 with urine 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.⁴

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 people who are disloyal. It has very little tolerance from 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 with adults 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 anyway."

In addition, Lusingo testified credibly about his personal knowledge of police mistreatment of Tanzanian citizens.⁵ He said that he had seen prisoners (including those with handicaps) being kicked and beaten with batons. He also testified that his friend was once arrested for "hanging out" on the street. His friend returned home without ever having been charged with any offense and told Lusingo of the conditions he had observed in prison. Lusingo learned that detainees are physically mistreated, denied food and medicine, and often raped by violent homosexual prisoners.

Christopher Nugent, Director of the Commission on Immigration Policy, Practice and Pro Bono of the American Bar Association, also testified at Lusingo's removal hearing. He explained that, while interviewing Lusingo, he had been "struck by how fearful [Lusingo] was of returning to Tanzania after all of the press reports."

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. JA. 012-013. The Report also confirmed that the Tanzanian government has little appetite for dissent. Id. The human rights record was "poor" and includes arbitrary arrests, torture, beatings, and horrendous prison conditions. Id.

A. The Immigration Judge's Decision.⁶

The IJ found Lusingo's fear of return "subjectively genuine." JA 012. The judge summarized Lusingo's claim as follows:

It is essentially [Lusingo's] contention that once the Tanzanian government became aware that he had disappeared from the scouting jamboree in Virginia and attempted to remain in the United States to attend school, it became angry with him for creating such a "media circus." Because of such government embarrassment it will target him for persecution upon his return based on a political opinion imputed to him. In this regard, [Lusingo] avers that his decision to walk away from the jamboree, an event his government permitted him to attend, and his determination to remain in the United States, will be viewed as an adverse imputed political opinion which the government has a history of responding to by acts constituting persecution and/or...