Mbonga v. Garland, 112221 FED6, 20-4268

Docket Nº20-4268
Opinion JudgeMURPHY, CIRCUIT JUDGE.
Party NameJonas Nsongi Mbonga, Petitioner, v. Merrick B. Garland, Attorney General, Respondent.
AttorneyAustin N. Davis, BAKER &HOSTETLER LLP, Cleveland, Ohio, for Petitioner. John F. Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Austin N. Davis, Michael E. Mumford, BAKER &HOSTETLER LLP, Cleveland, Ohio, for Petitioner. John F. Stanton, UNITED STATES DEPARTMENT OF ...
Judge PanelBefore: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.
Case DateNovember 22, 2021
CourtUnited States Courts of Appeals, United States Court of Appeals (6th Circuit)

Jonas Nsongi Mbonga, Petitioner,

v.

Merrick B. Garland, Attorney General, Respondent.

No. 20-4268

United States Court of Appeals, Sixth Circuit

November 22, 2021

Argued: October 21, 2021

On Petition for Review from the Board of Immigration Appeals. No. A 215 913 759.

ARGUED:

Austin N. Davis, BAKER &HOSTETLER LLP, Cleveland, Ohio, for Petitioner.

John F. Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

ON BRIEF:

Austin N. Davis, Michael E. Mumford, BAKER &HOSTETLER LLP, Cleveland, Ohio, for Petitioner.

John F. Stanton, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.

Before: McKEAGUE, NALBANDIAN, and MURPHY, Circuit Judges.

OPINION

MURPHY, CIRCUIT JUDGE.

The immigration laws give the Attorney General discretion to grant asylum to "refugees"-a term that includes those who have suffered persecution in their home countries because of their political beliefs. Exercising this discretion, the Attorney General has instructed immigration judges that they generally should deny asylum to refugees

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who have suffered past persecution if changed conditions in their countries make future persecution unlikely. 8 C.F.R. § 1208.13(b)(1)(i)(A). This case requires us to consider the type of evidence that permits the Board of Immigration Appeals to find these disqualifying changed country conditions.

Even though Jonas Nsongi Mbonga previously suffered political persecution in the Democratic Republic of the Congo, the Board of Immigration Appeals denied him asylum because his own political party had since assumed power in the country. The Board reasoned that this change in the government made any future political persecution unlikely. Nsongi Mbonga argues that this generic evidence about a national governmental change did not suffice and that the Board needed to rely on specific evidence tailored to his local situation. His argument gets things backwards under our caselaw. The Board can find a disqualifying change in conditions using general evidence showing that the political party that persecuted a refugee has lost power, which shifts the burden to the refugee to identify specific evidence proving that persecution still remains likely. Because Nsongi Mbonga did not present such evidence, we deny his petition for review.

I

Nsongi Mbonga fled the Democratic Republic of the Congo under trying circumstances. While living in the country's capital, he joined an athletic club that practiced jujitsu. This club had connections with the Congo's then-ruling political party, the People's Party for Reconstruction and Development. The club's leaders recruited Nsongi Mbonga to join a youth group for this ruling party in October 2013. These leaders allegedly planned to use this youth group to disrupt peaceful protests by the opposition party, the Union for Democracy and Social Progress. Finding this plan unjust, Nsongi Mbonga refused to participate. Nsongi Mbonga instead decided to join the opposition party because of its political platform favoring equality and nonviolence. He began to attend this opposition party's demonstrations and meetings.

Nsongi Mbonga's refusal to associate with the ruling party had serious repercussions for his safety. Two months after he declined to join the youth group, police officers allegedly beat him. Later, in July 2014, officers detained Nsongi Mbonga on his way home from church. After

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they discovered a card in his possession revealing his membership in the opposition party, they hit him with their batons until he lost consciousness. He woke up in a medical center and remained there for four days.

Nsongi Mbonga escaped to neighboring Angola for a short while. In January 2015, however, he came back to the Congo's capital to welcome the return of his political party's leader. The next month, Nsongi Mbonga again found himself in trouble with the police when he and fellow church members were on their way home from a music rehearsal. The officers arrested the group and took them to a detention center. Over four days, Nsongi Mbonga alleges, prison guards horribly mistreated him. He suffered beatings, torture, death threats, and sleep deprivation. The guards told him that they engaged in this abuse because of his refusal to join the ruling party.

Though his family secured his release, Nsongi Mbonga still feared for his safety. He left the capital and relocated to a small village, where he stayed for two years. When government forces got word of his location, he fled the Congo altogether. In July 2018, Nsongi Mbonga completed an arduous journey to the United States.

He applied for asylum, withholding of removal, and relief under the Convention Against Torture. An immigration judge denied relief. The judge expressed vague "concerns" with Nsongi Mbonga's credibility. Admin. R. (A.R.) 310. The Board reversed, ordering the judge to make a clearer credibility finding.

On remand, a different immigration judge again denied relief. Based on the paper record, this judge expressly found that Nsongi Mbonga was not credible. The judge next explained that he would have denied asylum to Nsongi Mbonga even if he had testified credibly. Although Nsongi Mbonga's testimony may have shown past persecution, the judge reasoned that he lacked a likelihood of future persecution because of changed conditions in the Congo. The country had since elected a new president (Felix Tshisekedi) from Nsongi Mbonga's own political party (the Union for Democracy and Social Progress). The judge denied Nsongi Mbonga's claims for withholding of removal and protection under the Convention Against Torture on similar grounds.

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This time, the Board affirmed. It rejected Nsongi Mbonga's claim that the immigration judge mistakenly found him not credible without holding a second evidentiary hearing. Assuming Nsongi Mbonga's credibility, the Board next upheld the judge's finding that changed conditions in the Congo (the election of a president from Nsongi Mbonga's party) eliminated his reasonable fear of political persecution. And while an alternative form of asylum ("humanitarian asylum") did not require any likelihood of future persecution, the Board found that Nsongi Mbonga did not qualify for this distinct form of relief either. The Board lastly affirmed the denial of Nsongi Mbonga's claims for withholding of removal and relief under the Convention Against Torture.

II. Asylum

Nsongi Mbonga challenges the Board's denial of asylum in two ways. He argues that the Board wrongly upheld the immigration judge's adverse credibility finding and wrongly decided that President Tshisekedi's election eliminated his reasonable fear of persecution. Yet the Board's opinion leaves unclear whether it even resolved the credibility issue. When holding that the change in the government barred relief, it simply assumed Nsongi Mbonga's credibility. And we generally may not address an issue that the Board did not reach. See INS v. Orlando Ventura, 537 U.S. 12, 16-17 (2002) (per curiam); Juncaj v. Ashcroft, 111 Fed.Appx. 424, 426 (6th Cir. 2004).

Ultimately, we need not rely on the credibility finding. Even if we likewise assume that Nsongi Mbonga testified credibly, the Board did not commit error in holding that the governmental changes in the Congo eliminated any well-founded fear of persecution. Nsongi Mbonga also failed to preserve his "humanitarian asylum" claim that does not require such a well-founded fear.

A. Asylum Based on a Well-Founded Fear of Persecution

Under the immigration laws, the Attorney General "may grant asylum" to an applicant if the Attorney General finds that the applicant qualifies as a "refugee" under a statutory definition of that word. 8 U.S.C. § 1158(b)(1)(A). This text requires courts to consider two basic questions when reviewing the Board's denial of asylum. See Mapouya v. Gonzales, 487 F.3d 396, 406 (6th Cir. 2007).

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(The Attorney General has delegated the power to grant asylum to the Board. See 8 C.F.R. § 1003.1(a)(1).) The first question: Does an asylum applicant qualify as a "refugee"? The immigration laws define "refugee" to include: any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion[.]

8 U.S.C. § 1101(a)(42)(A). To meet this refugee definition, applicants must show either that they suffered past "persecution" in their home country or that they have a "well-founded fear of persecution" in that country because of, among other grounds, their "political opinion." Id.; see INS v. Cardoza-Fonseca, 480 U.S. 421, 428 (1987).

Yet an applicant's "refugee" status does not guarantee asylum. The asylum statute says that the Attorney General "may" grant asylum to refugees, so it leaves the Attorney General with residual discretion to deny relief to otherwise eligible refugees. See Cardoza-Fonseca, 480 U.S. at 428 n.5. If an applicant qualifies as a refugee, therefore, a court must move on to the second question: Does the refugee warrant a favorable exercise of the Attorney General's discretion? See Hyzoti v. Mukasey, 269 Fed.Appx. 563, 565 (6th Cir. 2008).

The Attorney General has issued a regulation that guides the executive branch's decisions about which refugees merit a favorable exercise of discretion. See 8 C.F.R. § 1208.13(b)(1)(i). This regulation recognizes that, as the statutory definition makes clear, an applicant can qualify as a refugee based on "past persecution" alone. Id. § 1208.13(b)(1); see Matter of Chen, 20 I. &N. Dec. 16, 18 (BIA 1989). If the applicant establishes past persecution, moreover, the Attorney General presumes that the refugee has a well-founded fear of future persecution. 8 C.F.R. §...

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