Oscar Kayembe v. JOHN ASHCROFT, Attorney General of the United States

PRECEDENTIAL
Filed July 1, 2003
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1590
OSCAR KAYEMBE,
Petitioner
v.
JOHN ASHCROFT, Attorney General
of the United States,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(Board No. A78 828 030)
Argued on December 2, 2002
Before: ROTH, SMITH, and CUDAHY,* Circuit Judges
(Opinion filed July 1, 2003)
COUNSEL FOR PETITIONER
Rachelle Abrahami, Esquire (Argued)
Marguerite Marty, Esquire
American Friends Service Committee
Immigrant Rights Program
972 Broad Street, 6th Flr.
Newark, NJ 07102
* The Honorable Richard D. Cudahy, Circuit Court Judge for the United
States Court of Appeals for the Seventh Circuit, sitting by designation.

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COUNSEL FOR RESPONDENT
Robert D. McCallum, Esquire
Assistant Attorney General
Civil Division
Linda Wendtland
Assistant Director
Luis E. Perez (Argued)
Christopher C. Fuller
John S. Hogan
Trial Attorney
Office of Immigration Litigation
Civil Division
U.S. Department of Justice
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Norah A. Schwarz
United States Department of Justice
Office of Immigration Litigation
1331 Pennsylvania Avenue, N.S.
Washington, D.C. 20530
OPINION OF THE COURT
CUDAHY, Circuit Judge:
Oscar Kayembe petitions for review of a Board of
Immigration Appeals (BIA) decision denying him asylum.
Kayembe claims that his Tutsi ethnicity and his father’s
political detention give him a well-founded fear of future
persecution should he be returned to his previous home in
the Democratic Republic of Congo. Because the Board of
Immigration Appeals failed to make findings concerning
Kayembe’s credibility and failed to explain how Kayembe
had not met his burden of proof for asylum eligibility, this
court cannot undertake adequate review of the BIA
decision. We therefore vacate the BIA’s decision and
remand for further proceedings.
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I.
The appellant, Oscar Kayembe, was born in Kinshasa,
Zaire, on March 18, 1979. Zaire was renamed the
Democratic Republic of Congo (DRC) in May of 1997,
following an overthrow of its government. Kayembe claims
that his mother is of Tutsi ethnicity, and his father is of
Luba ethnicity. His parents were divorced when he was
nine years old, and he lived with his father, a diamond
dealer, prior to his departure from the DRC.
Kayembe claims that his problems in the DRC began in
August 1998 when then-president Laurent Desire Kabila
began to discriminate against ethnic Tutsis in the DRC.
Kayembe testified that, because he was part-Tutsi, he was
subject to constant verbal abuse in his community and that
government officials periodically subjected him to search,
harassment and interrogation at his home. Kayembe
further claims that after enrolling in a DRC university in
September 1998, he was forced to leave the school in
January 1999 due to persecution from peers and the
faculty.
In January 2001, Kabila was assassinated, and his son,
Joseph Kabila, became president of the DRC. Following the
assassination, the DRC government sought out and
detained persons suspected of having knowledge of, or
involvement in, the assassination. Kayembe testified that in
March 2001 he discovered that his father had been
detained by the government. Kayembe also testified that he
believed that his father had been detained for being a
diamond dealer, and that the government suspected
diamond dealers of being connected with the Kabila
assassination. Kayembe has had no contact with his father
since his father’s detention.
Following his father’s detention, Kayembe went into
hiding. He testified that the DRC government considers
family members of its opponents to be enemies, and that
that concern caused him to fear for his own safety. With a
counterfeit French passport, Kayembe made his way to the
United States, where he was detained. He sought asylum,
and proceedings on that application followed.
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After being denied asylum by an Immigration Judge (IJ),
Kayembe appealed to the Board of Immigration Appeals.
The BIA denied Kayembe’s appeal. This petition for review
followed.
II.
We have jurisdiction to review final orders of the BIA
pursuant to 8 U.S.C. § 1252. The Immigration and
Naturalization Act (INA) gives to the Attorney General the
discretionary power to grant asylum to an alien who
qualifies as a “refugee” under 8 U.S.C. § 1101(a)(42)(A). See
8 U.S.C. § 1158(b)(1). Under § 1101(a)(42)(A) a person
becomes eligible for “refugee” status by showing either past
persecution or a well-founded fear of future persecution if
returned to her prior country of residence based on “race,
religion, nationality, membership in a particular social
group, or political opinion.” Kayembe’s claim of refugee
status is based on a fear of future persecution derived from
his alleged Tutsi ethnicity and the imputation to him of
anti-government political opinions via his father’s
association with the diamond industry in the DRC. See
Balasubramanrim v. INS, 143 F.3d 157, 165 n.10 (3d Cir.
1998) (noting that a well-founded fear of persecution may
be based on political opinions correctly or incorrectly
imputed to the asylum seeker).
Whether or not Kayembe has demonstrated past
persecution or a well-founded fear of future persecution is
a factual question that we review under the substantial
evidence standard. Chen Yun Gao v. Ashcroft, 299 F.3d
266, 272 (3d Cir. 2002). We will uphold the findings of the
BIA to the extent that they are supported by reasonable,
substantial and probative evidence on the record
considered as a whole, and will reverse those findings only
if there is evidence so compelling that no reasonable
factfinder could conclude as the BIA did. Id.
Our power of review, however, extends only to the
decision of the BIA. Abdulai v. Ashcroft, 239 F.3d 542, 548-
49 (3d Cir. 2001). Therefore, only if the BIA expressly
adopts or defers to a finding of the IJ, will we review the
decision of the IJ. Id. This principle is relevant here
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because the BIA made no finding on the issue of Kayembe’s
credibility. Although the BIA noted that the “Immigration
Judge denied the respondent’s claim finding that he was
not credible,” Administrative Record (A.R.) at 2, the BIA
made no comment of its own regarding Kayembe’s
credibility. Nor did the BIA adopt or defer to the IJ’s finding
on the issue of credibility.1 We are left, therefore, with no
credibility finding to review.
III.
For the purposes of our review the credibility of Kayembe
has not been determined. As a practical matter, therefore,
we must proceed as if Kayembe’s testimony were credible
and determine whether the BIA’s decision is supported by
substantial evidence in the face of his assumed (but not
determined) credibility. See, e.g., Briones v. INS, 175 F.3d
727, 728-30 (9th Cir. 1999) (holding that petitioner’s
testimony, if credible, was sufficient to support asylum
claim and remanding to the BIA for a credibility
determination). If the BIA’s decision can be found to be
supported by substantial evidence, even if Kayembe’s
testimony is credible, then the absence of a finding on
credibility is not significant to the disposition of the case.
A.
Kayembe’s first argument contends that the BIA erred in
not finding a well–founded fear of future persecution based
on his alleged Tutsi lineage. This argument proceeds on two
fronts: 1) Kayembe contests the BIA’s finding that he has
not proved his Tutsi ethnicity; and 2) Kayembe contests the
finding that Tutsis are not subject to persecution in the
DRC, based on their ethnicity. We will begin with the
second part of his argument. Kayembe claims that the BIA
failed to consider the record as a whole when it found that
country conditions did not support Kayembe’s fear of
persecution in the DRC as a person of part-Tutsi origin,
1. In this case, the IJ made a fairly detailed analysis of Kayembe’s
credibility and found his testimony not credible enough, in part due to
lack of corroboration, to support his asylum application. A.R. at 90-94.
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and that the BIA limited its analysis of persecution to
“arrest and detention without charge.” When the BIA
rejected Kayembe’s claim that as a person of part-Tutsi
origin he would be subject to persecution, it cited a State
Department Country Report that stated, “the government of
the Congo is no longer engaged in the practice of arresting
and detaining members of the Tutsi ethnic group without
charge.” A.R. at 3. Even assuming Kayembe to be credible
with respect to his Tutsi lineage, the Country Report
potentially constitutes substantial evidence to support the
BIA’s finding. See, e.g., Lal v. INS, 255 F.3d 998, 1023 (9th
Cir. 2001) (“Our case law well establishes ‘that the country
report from our Department of State is the ‘most
appropriate’ and ‘perhaps best resource,’ for determining
country conditions. As such, the State Department report
‘provide[s] substantial evidence for the BIA’s determination
that the INS successfully rebutted the presumption of
future prosecution.’ ”) (citations omitted); Gonahasa v. INS,
181 F.3d 538, 542 (4th Cir. 1999) (“In most cases, a State
Department report provides . . . substantial evidence.”).
Kayembe claims, however, that the State Department report
contains “additional data about the treatment of Tutsis
which should have been considered by the BIA since it is
indicative of the societal and governmental attitude of
Tutsis and the treatment of Tutsis in the DRC.” Appellant’s
Br. at 25.
Kayembe is correct that the State Department Report
cuts both ways. The following are some excerpts from the
report:
Violence and discrimination against members of the
Tutsi ethnic minority continued; however, the
Government protected many Tutsis who were at risk.
* * *
In July 2000, a Belgian Judge issued an arrest warrant
against Congolese Foreign Minister Yerodia Abdoulaye
after a number of Tutsis in Belgium claimed that
Yerodia’s radio broadcasts in August 1998 incited the
populace to murder Tutsis randomly. A similar case
was filed against Laurent Kabila in September 2000.
* * *
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The [International Committee of the Red Cross]
regularly visited a facility in Kinshasa where the
government provides shelter to Tutsis for their own
protection.
* * *
The government no longer followed a policy of arresting
and detaining members of the Tutsti ethnic group
without charge and merely on the basis of their
ethnicity. Approximately 300 Tutsis who voluntarily
entered a government protection site at the National
Social Security Institute in Kinshasa remained there at
year’s end pending resettlement or reintegration into
the community. However, information obtained late in
the year indicated that the Government in 1998
arrested approximately 30 Tutsis, who remained in
detention in Makala prison at year’s end largely
because of their ethnicity.
* * *
In April 1999, members of the Presidential Guard
arrested Ralph Biteo, because he had the facial
features of a Tutsi, and Biteo’s cousin Mirimo Mulongo;
both were released in August 1999.
* * *
The previous constitutions prohibited discrimination
based on ethnicity, sex, or religious affiliation; however,
the Government did not enforce these prohibitions
effectively and continued to act with prejudice against
members of the Tutsi ethnic group. Societal
discrimination remained an obstacle to the
advancement of certain groups, particularly women,
Tutsis, Muslims, and the indigenous Pygmy (Batwa)
people.
* * *
Since the start of the war in August 1998, ethnic
Tutsis have been subjected to serious abuses, both in
the capital and elsewhere, by government security
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forces and by some citizens for perceived or potential
disloyalty to the regime; however, these abuses
decreased somewhat during the year . . . . Human
rights groups increasingly complained that the killing
of and other human rights violations against Congolese
civilians by persons perceived to be of Tutsi ethnicity
and their supporters presented an increasing problem.
The Government materially supported Mai Mai and
Hutu armed groups, which, according to credible
reports, repeatedly killed both unarmed and armed
Tutsis in areas militarily dominated by antigovernment
forces.
U.S. Dep’t of State, Country Reports on Human Rights
Practices—2001, Democratic Republic of the Congo.
Just because the State Department report cuts both
ways, however, does not mean that it does not constitute
substantial evidence. On the contrary, after reviewing the
State Department report, we are left with the impression
that a reasonable fact finder could find that a Tutsi in the
DRC does not have a reasonable fear of persecution based
upon his ethnicity.2 This means that the BIA’s decision is
supported by substantial evidence; the only circumstance
that precludes support by substantial evidence is when
“ ‘any reasonable adjudicator would be compelled to
conclude to the contrary.’ ” Chen Yun Gao, 299 F.3d at 272
(emphasis added). Because we conclude that the BIA’s
finding that Tutsis in the DRC are no longer subject to
government persecution based on their tribal origin is
supported by substantial evidence, we need not consider
the BIA’s finding that Kayembe failed to prove he was
actually a Tutsi.
2. We do, however, note that the situation in the DRC is quite fluid, and
appears to have taken a turn for the worse during the pendency of this
appeal. Serious fighting has apparently broken out in the eastern parts
of the country and United Nations forces are being sent to try to stabilize
the situation. See With Congo Truce in Doubt, U.N. Takes Steps to Send
Troops, N.Y. Times, May 17, 2003, at A2. We are confident that, to the
extent relevant, the BIA will evaluate ongoing changes in country
conditions in its analysis of Kayembe’s case on remand.
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B.
Kayembe’s second argument, that the BIA erred in not
finding a well–founded fear of future persecution based on
political opinions imputed to Kayembe due to his father’s
status as a diamond dealer, is not disposed of nearly as
easily. In the record before the BIA, which included
Kayembe’s testimony before the IJ, Kayembe asserts: 1) His
father is a diamond dealer, A.R. at 82; 2) Diamond dealers
in the DRC, such as his father, are assumed to be political
opponents of the current regime in power and are therefore
targeted for persecution by the government (Kayembe
testified that his father was either kidnapped or arrested by
the government, A.R. at 84-85, 93); 3) The assumed
political opinions of his father are imputed to Kayembe by
the DRC government, A.R. at 86-87; and 4) Kayembe fears
that he would be a target for government persecution in the
DRC because of these imputed political opinions, A.R. at
86-87. In response to this claim the BIA wrote:
The respondent also claims to fear persecution on
the basis of his father’s alleged detention. However, the
respondent has failed to meet his burden to show why
his father would have been detained. While the
respondent claimed that his father was involved in the
diamond industry, we are in agreement with the
Immigration Judge that the respondent provided scant
information about that involvement. Further, even
assuming the respondent’s father’s involvement in the
diamond industry, the respondent has not established
how, by virtue of his father’s involvement, he would
suffer persecution on account of a protected ground.
A.R. at 3.
Because the BIA made no findings as to Kayembe’s
credibility and pointed to nothing in the record that refuted
Kayembe’s claims, we are faced with this question: If we
assume Kayembe to be credible, were the facts that the BIA
reviewed such that a reasonable fact finder would be
required to conclude that Kayembe had a reasonable fear of
persecution were he to be returned to the DRC? We answer
this question in the affirmative. Kayembe testified that his
father had been detained by the government because of the
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political beliefs attributed to his father, that the government
imputed the same political beliefs to Kayembe, and that he
feared a fate similar to his father’s should he return to the
DRC.3 If this testimony is assumed credible, there is no way
that a reasonable factfinder could reach a conclusion other
than that Kayembe had a reasonable fear of persecution
based upon imputed political beliefs.
It is possible, however, that Kayembe’s testimony alone,
even if found to be credible, may not meet his burden of
proof. “[T]he BIA may sometimes require otherwise-credible
applicants to supply corroborating evidence in order to
meet their burden of proof.” Abdulai, 239 F.3d at 554. For
the BIA to require and consider corroboration, it must
conduct a three-part inquiry. Id. First, the BIA must
identify the facts for which “it is reasonable to expect
corroboration.” Id. In general, “it is ‘reasonable’ to expect an
applicant to corroborate ‘facts which are central to his or
her claim and easily subject to verification.’ ” Id. (quoting In
re S-M-J, 21 I. & N. Dec. 722 (BIA 1997), available at 1997
WL 80984). Second, the BIA must decide whether an
3. We do note, with some trepidation, that the allegedly imputed political
beliefs were based on the status of Kayembe’s father as a diamond
dealer. As is widely reported, diamonds from the DRC are “conflict
diamonds”—the label given to diamonds sold outside legitimate channels
of commerce for the funding of rebellion and warfare in Africa. See, e.g.,
Adam Hochschild, Chaos in Congo Suits Many Parties Just Fine, N.Y.
Times, April 20, 2003, at D3; Tosin Sulaiman, Law to Curb ‘Conflict
Diamond’ Trade, Philadelphia Inquirer, May 18, 2003, at A10; Douglas
Farah, Digging Up Congo’s Dirty Gems, Wash. Post, Dec. 20, 2001, at A1.
We wonder whether persecution as a result of a diamond dealer’s
dispute with government forces over control of diamond resources would
be proper grounds for asylum. However, Kayembe himself is not a
diamond dealer, nor does the record indicate that the alleged
kidnaping/detention was based on anything other than political views
imputed to Kayembe’s father based on his status as a diamond
merchant (there is nothing to indicate that Kayembe’s father directly or
indirectly was a combatant in the DRC’s civil war or a merchant of
conflict diamonds) and subsequently imputed to Kayembe. Therefore,
this issue does not affect the outcome of the petition before us in the
present case. However, to the extent relevant, we are confident that the
BIA will consider this issue on remand in evaluating Kayembe’s asylum
request.
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applicant has provided corroboration for the relevant facts.
Id. Third, as to facts the applicant was unable to
corroborate, the BIA must decide whether the applicant
adequately explained his failure to corroborate them. Id.
There are certainly facts which the BIA may require
Kayembe to corroborate. The IJ’s decision identifies some of
these facts and discusses Kayembe’s failure to corroborate
them. See A.R. at 90-94. The BIA’s opinion in this case,
however, said nothing about corroboration. Because
corroboration is not required in all cases, and because the
BIA did not satisfy the threshold requirement of identifying
the facts that require corroboration, we will not read a
requirement of corroboration into its opinion.
In the end we are left with a situation this court has
faced before in Abdulai—a BIA decision that fails to make
findings on credibility and only asserts petitioner’s generic
failure to meet his burden of proof. Abdulai, 239 F.3d at
551. Unlike Abdulai, where the BIA noted a lack of
corroboration but failed to adequately explain petitioner’s
failure to corroborate, the BIA in this case has failed even
to provide us with clues that would indicate why or how
Kayembe failed to meet his burden of proof. As a result,
“the BIA’s decision provides us with no way to conduct our
(albeit limited) review.” Id.
IV.
When deficiencies in the BIA’s decision make it
impossible for us to meaningfully review its decision, we
must vacate that decision and remand so that the BIA can
further explain its reasoning. Id. at 555. This is the case
here, as the BIA’s failure either to adopt the IJ’s credibility
findings or to make its own leaves us with too little to
review. Therefore, we will GRANT the petition for review,
VACATE the BIA’s order and REMAND the matter to the
BIA for further proceedings consistent with this opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
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