Luziga v. Attorney Gen. U.S.

• Decision Date: 05 September 2019
• Docket Number: No. 17-2444,17-2444
• Citation: 937 F.3d 244
• Parties: Ayub Juma LUZIGA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent
• Court: U.S. Court of Appeals — Third Circuit

937 F.3d 244

Ayub Juma LUZIGA, Petitioner

v.ATTORNEY GENERAL UNITED STATES OF AMERICA, Respondent

No. 17-2444

United States Court of Appeals, Third Circuit.

Argued June 17, 2019

Filed: September 5, 2019

Khary Anderson [ARGUED], University of Pennsylvania, School of Law, 3400 Chestnut Street, Philadelphia, PA 19104

Joseph P. Archie, Nicolas A. Novy, Dechert, 2929 Arch Street, 18th Floor, Cira Centre, Philadelphia, PA 19104, Counsel for Petitioner

Jennifer R. Khouri [ARGUED], Tim Ramnitz, Chad A. Readler, Acting Assistant Attorney General, United States Department of Justice, Office of Immigration Litigation, P.O. Box 878, Ben Franklin Station, Washington, DC 20044

Before: AMBRO, RESTREPO and FISHER, Circuit Judges.

OPINION OF THE COURT

FISHER, Circuit Judge.

An Immigration Judge (IJ) decided, and the Board of Immigration Appeals (BIA) agreed, that Petitioner Ayub Luziga is ineligible for withholding of removal under the Immigration and Nationality Act (INA) and the Convention Against Torture (CAT) because he was convicted of a "particularly serious crime," and that he is not entitled to deferral of removal under the CAT because he failed to carry his burden of proof. Luziga requests our review, arguing that the IJ and BIA made two legal errors. First, Luziga argues that the IJ and BIA misapplied the framework for making particularly serious crime determinations, a framework the BIA itself has established in its precedential opinions. Second, Luziga argues that the IJ failed to observe the rule we articulated in Abdulai v. Ashcroft , 239 F.3d 542, 554 (3d Cir. 2001), requiring immigration judges to notify a noncitizen in removal proceedings that he is expected to present corroborating evidence before finding that failure to present such evidence undermines his claim. We agree that the IJ and BIA erred in these respects; therefore, we will grant Luziga’s petition for review, vacate the underlying order, and remand.¹

I.

Ayub Luziga, a native of Tanzania, was lawfully admitted to the United States as a visitor twenty years ago. He later applied and was approved for a student visa but eventually fell out of lawful status. In 2014, he was arrested and indicted for wire fraud in violation of 18 U.S.C. § 1343 and conspiracy to commit the same in violation of 18 U.S.C. § 1349. The Government alleged that from 2007 to 2008, Luziga, his then-wife, Annika Boas,² and fellow Tanzanians conspired to "fraudulently secure residential mortgage loans funded by federally-insured financial institutions by causing materially false statements to be made during the loan application and approval process." Certified Administrative Record (C.A.R.) 1026-28.

Luziga pleaded guilty to the conspiracy charge and was sentenced to twenty-one months’ imprisonment. His conduct caused losses between $400,000 and $1,000,000, and he personally received checks totaling at least $54,863.11. He was ordered to pay restitution of almost $1,000,000.

Luziga cooperated in the investigation of his co-conspirators and testified against his wife, who was convicted and sentenced to twenty-seven months’ imprisonment. While Luziga prepared to testify, prosecutors asked him about the location of Mrisho Nzese, who had been convicted for his role in the conspiracy but fled the country. They also wanted Luziga to ask his stepfather, a police commissioner and the chief of INTERPOL in East Africa, to help return Nzese to the United States. News of the investigation and Luziga’s cooperation with prosecutors spread through the Tanzanian community in the United States and abroad.

While Luziga was serving his sentence, the Department of Homeland Security (DHS) ordered him removed by final administrative order. See 8 U.S.C. § 1228(b). However, because Luziga expressed a reasonable fear of returning to Tanzania, DHS referred him to the Executive Office for Immigration Review (EOIR) for removal proceedings, where he requested withholding of removal under the INA and the CAT, and deferral of removal under the CAT. See 8 C.F.R. § 208.31. At Luziga’s individual hearing,³ the IJ heard part of his testimony before deciding that his conspiracy conviction was a conviction for a particularly serious crime, making him ineligible for withholding of removal under the INA, 8 U.S.C. § 1231(b)(3)(B)(ii), and the CAT, 8 C.F.R. § 1208.16(d)(2). The IJ allowed the hearing to proceed on the issue of deferral of removal under the CAT.

In support of his request for deferral of removal, Luziga explained that he feared torture and testified that his parents-in-law threatened to "make sure that [he] suffer[s]" in Tanzania and said he "would never even survive a day in Africa." C.A.R. 472-73. Luziga understood this to mean that they would kill him. Nzese, the co-conspirator who had fled the United States, made similar threats. Luziga learned of Nzese’s threats from two sources. First, he received a letter from a friend reporting that "the other guy who went [to Tanzania]," who Luziga believed to be Nzese, blamed Luziga for trying to bring him back to the United States. C.A.R. 509-10, 974. Second, a friend of his then-wife who "[hung] out [at] a lot of parties in Tanzania" with Nzese, C.A.R. 501, wrote to Luziga warning him of Nzese’s threats. Annika’s friend also testified telephonically in support of Luziga’s request for relief from removal.

Luziga testified that his parents-in-law and Nzese could act on threats with assistance from Tanzanian officials, or at least with impunity. He claimed that Nzese is the nephew of Tanzania’s former president. And he believed that his father-in-law, Nicholas Boas, knew "top level" officials through his work.⁴ C.A.R. 477. Luziga believed that another co-conspirator’s father was a retired general. Luziga testified that, in his experience, connections with Tanzanian officials shield perpetrators of violence from criminal culpability. He described a time when his friend, whose grandfather was a member of parliament, shot a bus driver without any criminal consequence. Luziga feared that his parents-in-law and Nzese could do the same to him. Though his own stepfather occupied a position of prominence, Luziga feared this would not suffice to protect him due to his stepfather’s fragile health and waning influence, among other things.

The IJ found that Luziga testified in a "forthright and frank fashion," C.A.R. 445, and made no adverse credibility determination. In the absence of an explicit adverse credibility determination, we assume that the noncitizen testified credibly. Camara v. Att’y Gen. , 580 F.3d 196, 201 (3d Cir. 2009).

Luziga also presented the testimony of an expert witness, Professor Ned Bertz, an associate professor at the University of Hawaii with expertise in Tanzanian "history ... encompass[ing] politics[,] culture[,] religion[,] ethnicity[,] and current events, as well as issues of crime [and] violence." C.A.R. 521-22. Professor Bertz validated Luziga’s fears, testifying that in Tanzania "[p]eople with government contacts have the ability ... to enact violence against other individuals if they so choose." C.A.R. 530. And while Professor Bertz could not verify the alleged connection between Nzese and the former president, he confirmed that the former president was directly involved in the selection of the current president and that Nzese appeared to be an influential member of the same political party.

After the close of evidence and counsel’s final remarks, the IJ announced her opinion and decision. She first addressed her particularly serious crime determination, explaining that Luziga’s conviction for participation in a fraud scheme that resulted in losses of nearly $1,000,000 constituted a particularly serious crime under Third Circuit precedent and calling Luziga’s criminal pre-sentencing report "quite dispositive." C.A.R. 432-33. She accordingly found Luziga ineligible for withholding of removal under the INA and the CAT and pretermitted those applications.

Addressing Luziga’s request for deferral of removal, the IJ decided that Luziga had not carried his burden of proof. She accepted that there had been threats against him, but highlighted what she saw as shortcomings in his evidence. She said there was "absolutely no showing whatsoever that either Mrisho Nzese or [Luziga]’s parents-in-law have the capacity somehow to cause [his] torture." C.A.R. 446. She stated there was "no proof" that Luziga’s parents-in-law and Nzese had government connections: "[O]ther than one individual so opining, and [Luziga] also opining that [Nzese] is the nephew of the ex-president[,] ... [t]here is no independent corroborative information supplied on this issue, and that causes the issue to fail under the burden of proof standard." Id. Even assuming Luziga’s co-conspirators’ government connections, she found that Luziga did not satisfy his burden of proof on the nexus between torture and government action or culpable inaction because "the suggestion that the ex-president would ... do something unlawful to vindicate [ ] Nzese, is supported by nothing at all on the record other than some opining by [the] expert ... and [Luziga]’s own opinions about that"; and "there is nothing to substantiate" that Luziga’s parents-in-law could torture him with the acquiescence of the government. C.A.R. 446-47. Finally, she found that "[t]here is absolutely nothing to substantiate [Luziga]’s contention that his own stepfather ... would be unable to protect [him]." C.A.R. 447. The IJ found these failures of proof dispositive of Luziga’s claim.

Luziga appealed to the BIA⁵ and argued that the IJ erred in her particularly serious crime determination because, while precedent requires a two-step analysis, the IJ had "skipped the preliminary step to determine whether the elements of federal wire fraud bring ‘the crime into a category of particularly serious crimes.’ " C.A.R. 28 (citing In re N-A-M- , 24 I. & N. Dec. 336, 342 (B.I.A. 2007) ). He also argued that the IJ clearly erred in finding that he had...