Mapouya v. Gonzales

• Decision Date: 18 May 2007
• Docket Number: No. 06-3042.,06-3042.
• Citation: 487 F.3d 396
• Parties: Blaise MAPOUYA, Petitioner, v. Alberto R. GONZALES, Respondent.
• Court: U.S. Court of Appeals — Sixth Circuit

487 F.3d 396

Blaise MAPOUYA, Petitioner, v. Alberto R. GONZALES, Respondent.

No. 06-3042.

United States Court of Appeals, Sixth Circuit.

Submitted: March 13, 2007.

Decided and Filed: May 18, 2007.

ON BRIEF:

John S. Richbourg, Memphis, Tennessee, for Petitioner. Surell Brady, United States Department of Justice, Washington, DC, for Respondent.

Before MARTIN and CLAY, Circuit Judges; POLSTER, District Judge.^*

POLSTER, D.J., delivered the opinion of the court, in which MARTIN, J., joined. CLAY, J. (pp. 416-23), delivered a separate dissenting opinion.

OPINION

DAN AARON POLSTER, District Judge.

Blaise Mapouya petitions for judicial review of an order rendered by the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment of Punishment ("The Convention" or "Convention"). For the reasons set forth below, we VACATE and REMAND this case to the BIA for further proceedings.

I. BACKGROUND

Blaise Mapouya¹ is an ethnic Mbochi born in Brazzaville, Congo on January 4, 1970. He fled Congo on March 20, 1999, and eventually entered the United States illegally through New York City on August 3, 2002, using a borrowed passport. Mapouya made his way to Memphis, Tennessee, and in October 2002, he filed an application for asylum, withholding of removal, and relief under The Convention.² On the application, Mapouya claimed asylum based on political opinion. After recounting that Mapouya was subjected to violence and torture in the days of the 1997-98 Congolese civil war, the application included Mapouya's assertion that he would not return to Congo as long as Denis Sassou-Nguesso is president, "because I do not want to put my life in danger."

In April 2003, the INS charged that Mapouya was removable from the United States because he entered the country illegally. At the initial hearing before the Immigration Judge ("IJ") in July 2003, Mapouya, through counsel, admitted the INS charge and conceded his removable status. On May 3 and 6, 2004 the IJ conducted a hearing on Mapouya's requests for relief. Mapouya produced evidence in support of his application including: the 2003 Department of State Country Report on Human Rights Practices for the Congo; several Amnesty International reports or documents; a United Nations High Commissioner for Refugees ("UNHCR") attestation letter issued in Gabon; his birth certificate; and two letters from individuals still living in Congo. Mapouya presented one witness, Ibrahima Viong, and Mapouya also testified on his own behalf.

A recounting of recent events is necessary to better understand the details of Mapouya's testimony. In the second half of 1997, violence and civil war returned to the Republic of Congo³ (hereinafter "Congo") when Sassou-Nguesso, the country's former military strongman, ousted the country's first democratically elected president, Pascal Lissouba.⁴ Sassou-Nguesso, who had ruled Congo previously from 1979-91 after a coup, once again seized power militarily in October 1997 after several months of vicious fighting between government and militia troops loyal to Lissouba on one side, and Sassou-Nguesso's forces on the other.⁵ Angolan troops also crossed the southern border and intervened at different places on Sassou-Nguesso's behalf, including in the capital city of Brazzaville, which is located in the southeast region of the country.

Strong ethnic overtones are present in Congolese politics, and the 1997-98 civil war was no different. Generally, the conflict can be characterized as pitting northerners, who supported Sassou-Nguesso and his Congolese Labour Party ("PCT"), against southerners, who supported former President Lissouba and former Prime Minister Bernard Kolelas. The Mbochi, which are one of the larger Bantu ethnic groups, are located primarily in the northern regions of Congo. Accordingly, the Mbochi are traditionally strong Sassou-Nguesso supporters, especially because Sassou-Nguesso is Mbochi as well. Conversely, supporters of Lissouba and his Pan-African Union for Social Development party (the translated acronym for which is "UPADS") are primarily southern Congolese tribes, which are mainly Lari ethnic groups. Any divergence from these ethnic-political affiliations, while not unheard of, is rare. Mapouya appears to be one of these few exceptions.

With this background in mind, Mapouya's testimony is as follows.

In October of 1997, Mapouya was living in Brazzaville and working as a housekeeper in the home of Albert Yangari, a Lari tribe member. While Yangari's official position is unknown, he was apparently a prominent Lissouba supporter and/or a high-ranking UPADS party official who worked directly under Lissouba. On October 15, 1997, approximately fifty armed soldiers in green uniforms broke into Yangari's house while Mapouya was there working. The intruders arrested Yangari and then summarily executed him. The men also shot and killed Yangari's wife and children. The soldiers arrested Mapouya as well, but when they learned he was Mbochi they did not kill Mapouya. Instead, the soldiers — who were also Mbochi — took him into custody and transported him to the central jail in Brazzaville. Mapouya's wife and child were not in Brazzaville at the time; Mapouya had previously requested Yangari's help to get his family out of the country in light of the surging violence a few months earlier.

The cell in which Mapouya was detained and held without counsel was extremely overcrowded and contained no furniture or bathroom facilities (aside from two tin cans which were to be used as toilets). Mapouya only left this cramped and crowded cell when soldiers came to take him into the basement for interrogation. The questioning centered around Mapouya's role with the UPADS and Yangari's relationship with Lissouba. When Mapouya told his captors he was just a regular UPADS member and knew nothing about his boss's activities, he was accused of lying. Consequently, the soldiers beat and tortured Mapouya with clubs and sticks. The beating lasted about an hour.

Mapouya was detained for three months, during which time he was similarly interrogated and beaten every morning. His captors finally released Mapouya because they had nothing with which to charge him, but they ordered Mapouya to remain within Brazzaville. To ensure that Mapouya followed their order to stay in the city, the soldiers also ordered him to report to the police station every week. Mapouya complied with the soldiers' orders initially, but each time he reported back to the police station, the soldiers threatened to kill him if he was not truthful. The soldiers also beat Mapouya during these visits to the police station, and after three consecutive weeks of the same treatment, Mapouya refused to report any further.

Government troops appeared at Mapouya's home in February of 1998, less than one month after his last report to the police station. They accused Mapouya of supporting Lissouba, and forcefully took him back into custody. The soldiers beat Mapouya when arresting him, and then again after they reached the central prison in Brazzaville. Mapouya was dumped in a cell without windows or furniture, along with approximately fifteen other detainees. Once a week Mapouya's captors would take him from the cell to a special torture room, where he was interrogated about his former boss's relationship with Lissouba. Although his captors and tormentors were also Mbochi, Mapouya "had a problem because of [his] boss."

Mapouya remained in custody without charge, subject to weekly torture sessions, for eleven months, at which point he was released. The soldiers, before releasing him, confiscated Mapouya's passport and the documents he held evidencing ownership of his house. Mapouya was also ordered to remain in Congo, but instead, Mapouya decided to flee Congo in search of his wife and child.

He headed for Gabon, which shares a border with Congo and to which Mapouya's wife and child had fled in 1997. To successfully cross the border in Gabon took Mapouya nearly eight months. Trying to enter Gabon undetected, Mapouya traveled and hid in the bush with a group of similarly-situated refugees, as the group attempted to find an unsecured stretch of border to cross. Gabon was generally opposed to allowing refugees into the country, but Mapouya eventually succeeded, and he managed to procure a UNHCR document in Gabon granting him refugee status until September 20, 2000 (a period of one year's time).⁶

The Gabonese authorities subsequently discovered Mapouya residing in the country illegally after the UNHCR document expired, and they informed Mapouya that he had to leave the country or be remanded into custody and returned to Congo. Fearing a return to Congo, Mapouya obtained another man's passport with the help of some friends and escaped to the United States.⁷

Mapouya also called Ibrahima Viong to testify during the immigration hearing. Viong, who is also Congolese but of Lari ethnicity, met Mapouya in Memphis a few days after Mapouya arrived in the United States. The two men did not know each other before meeting in Memphis. Viong's testimony consisted of his retelling the same story as recounted above, with the exception that Viong testified that Mapouya fled to Mali from Congo. Mapouya had previously testified that he fled to Gabon. Mapouya's counsel attempted to question Viong to clarify the discrepancy, but counsel for the government objected and the IJ sustained the objection. Mapouya's counsel did not rephrase his question or try to continue his line of questioning.

After considering the oral testimony and record evidence, the IJ entered an oral order denying Mapouya's applications and ordering his removal from the United States. In the order, the IJ found Mapouya not credible, based on three specific (alleged) inconsistencies discussed in detail below. The IJ...