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Zubeda v. Ashcroft

June 23, 2003


Petition for Review of a Decision of the Board of Immigration Appeals A78-824-095

Before: McKEE and Smith, Circuit Judges, and Hochberg, District Judge

The opinion of the court was delivered by: McKEE, Circuit Judge.


Argued: April 1, 2003


Takky Zubeda asks us to review the decision of the Board of Immigration Appeals (the "BIA") vacating an Immigration Judge's ruling granting her relief from an order of removal. Although the Immigration Judge denied Zubeda's petition for asylum and withholding of deportation, he found that she was entitled to relief under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (hereinafter referred to as the "Convention Against Torture" or the "Convention"). The BIA reversed that ruling and ordered Zubeda removed to the Democratic Republic of the Congo. The BIA's decision was based upon its conclusion that the record did not support the Immigration Judge's finding that Zubeda would likely be detained if returned to the DRC. Although it appears that the Immigration Judge may have taken administrative notice of that fact, the record is not clear as to how the Immigration Judge concluded that Zubeda would likely be detained if deported.

Inasmuch as the INS agrees that the most appropriate resolution is remand to the Immigration Judge for clarification and additional evidence, we will grant Zubeda's petition for review and remand the matter to the Immigration Judge. Moreover, inasmuch as the government has also agreed to allow Zubeda to raise the issue of her membership in the Bembe tribe on remand, the Immigration Judge will also be able to consider any impact Zubeda's tribal identity may have on her claim for asylum, withholding of deportation, or relief under the Convention Against Torture.*fn1


Takky Zubeda is a twenty-eight year old female who is native to, and a citizen of, the Democratic Republic of the Congo (the "DRC"). She is legally married to a lawful permanent resident of the United States who entered this country as a refugee from the DRC in 1993. In 1999, he traveled briefly to Tanzania, where he and Zubeda were married. After their marriage, Zubeda returned to the Congo and lived with her husband's parents for 22 months.*fn2

Her current problems with the INS began when she was detained in December of 2000 while attempting to enter the United States without proper documentation after arriving at an airport in New York City. Zubeda was referred to an INS Asylum Officer for a "credible fear" interview after she expressed her fear of being returned to the DRC. The Asylum Officer found her credible and concluded that she had established a credible fear of persecution if returned to the DRC.

The INS served a Notice to Appear on Zubeda on February 2, 2001. It charged that Zubeda is removable from the United States under section 212(a)(6)(C)(i) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1182(a)(6)(C)(i), for seeking admission to the United States by fraud or willful misrepresentation, and under section 212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), for failing to possess a valid entry document when seeking admission to the United States.

She thereafter filed a petition with the INS in which she requested asylum and withholding of deportation, and "also sought protection under Article 3 of the Convention," Zubeda's Br. at 3. Zubeda appeared with counsel at the hearing on that petition and conceded that she was removable under INA § 212(a)(7)(A)(i)(I) because she lacked valid travel documents. She denied seeking admission by fraud or willful misrepresentation, and the Immigration Judge dismissed those grounds after the INS failed to produce any proof of those allegations.

Several documents were admitted into evidence at the hearing including official country reports prepared by the U.S. State Department, as well as reports from private organizations such as Human Rights Watch and Amnesty International. The evidence also included Zubeda's asylum application, the record of the determination of the credible fear interview, and an affidavit from an expert witness. Zubeda was the only witness who actually testified. Inasmuch as the conditions described in that evidence are key to the Immigration Judge's final determination, and the BIA's subsequent reversal of it, we will summarize the testimony and country reports in some detail:

A. The Democratic Republic of Congo.

According to the evidence that was introduced, the DRC (formerly "Zaire"), has a history of flagrant human rights abuses being perpetrated by both government and rebel forces. The country is currently embroiled in a vicious civil war. Six other African countries have aligned themselves with one of the two sides in that war. The anti-government faction in that war is composed of two factions: the Rassemblement Congolais Pour La Democratie (Congolese Rally for Democracy or "RCD"), and the Mouvement Pour Liberation du Congo (Movement for the Liberation of Congo or "MLC"). These fighters are supported by Tutsi factions from Burundi and Rwanda and by the Uganda People's Defense Forces. The anti-government forces control the eastern part of the DRC, including South Kivu which is Zubeda's home region. Government forces, known as Forces Armees Congolaises (Congolese Armed Forces or "FAC"), are supported by the governments of Angola, Namibia, Zimbabwe and by Hutu militants from Rwanda known as the "interahamwe." Armed groups that support the government known as "mayi-mayi," or "mai mai," also often fight in rebel held areas.

Reports of Amnesty International portray the DRC as a brutal and life-threatening environment with a predatory government capable of wielding genocidal force while teetering on the brink of collapse. A Report states:

[A]t least 300,000 civilians have fled to neighboring countries, while more than one million people have been internally displaced in conditions that have caused numerous deaths from disease, starvation and exposure. This is a snapshot of a catalogue of human rights abuses and suffering that the people of the DRC have been subjected to since August 1998 by forces whose foreign and Congolese political and military leaders claim to be fighting for security or sovereignty.

In reality, many of the leaders are involved in a fight for political and economic control of the DRC. Amnesty International has concluded that these leaders are perpetrating, ordering or condoning atrocities on a large and systematic scale, and deliberately violating people's individual and collective right to security and sovereignty.

*****... [S]ince the start of 1999, hundreds of unarmed civilians have been killed as a result of direct or indiscriminate attacks by forces loyal to President Kaliba in clear violation of Common Article 3 of the Geneva Conventions.

Amnesty International Reports, Democratic Republic of Congo: Killing Human Decency (May 2000), at 1, 17.*fn3

Zubeda introduced evidence to establish that her family was from Baraka, a village in the South Kivu Province in the eastern part of the DRC. Zubeda testified that her mother had been raped by soldiers in November of 2000.*fn4 Zubeda was then living in a nearby village with her in-laws, but she returned to Baraka to care for her mother after the rape. Her father intended to report the rape to human rights groups working in the area, but before he could do so, ten soldiers forcefully entered the family home and brutalized the family. Zubeda said that these soldiers tied her father and brother and forced them to watch as they gang raped her. When they were finished, the soldiers decapitated her father and brother with machetes and set fire to the family home while Zubeda's mother and sister were still inside. Zubeda testified that she thought the soldiers committed these atrocities to prevent her father from reporting her mother's rape to human rights workers.

Zubeda said that after the gang rape, she was taken to a detention camp or military camp where she was again sexually abused and forced to clean and cook for the soldiers. Zubeda claims that she was finally able to escape from the camp along with three other women and flee to neighboring Tanzania. There, she received assistance from members of a religious organization who gave her $100 and a passport belonging to one of the workers. Zubeda claimed that she was told that the passport would allow her entry into the United States. According to Zubeda, one of the female workers took her to the train station in Dar Es Salaam, Tanzania, and then helped her board the plane that brought her to New York. Zubeda admitted that she falsely told INS inspectors in New York that she had come to visit her brother and attend bible school. She explained that she lied because she became frightened about telling the truth when INS inspectors threatened to return her to the DRC.

Zubeda claims that her experience is typical for South Kivu Province which is the site of massive human rights abuses as documented in various country reports. A report by Human Rights Watch states:

[R]ape and other forms of sexual violence have become widespread as the war in eastern Congo has grown increasingly bitter. One Congolese women's rights group registered 115 rapes between April and July 1999 in just two regions of Katana and Kalehe in South Kivu with thirty in just one April 5 attack on Bulindi and Maitu. Groups of ten or more men sometimes gang rape one woman. Assailants sometimes take women hostage to be used as sexual slaves. Both soldiers and armed opposition groups have engaged in such abuses, but Hutu armed groups are reported to have perpetrated rapes more often than other groups. They use sexual violence to terrorize civilians, especially those thought to be RCD supporters and most especially those who participate in civil self-defense forces.

Human Rights Watch: Eastern Congo Ravaged: Indiscriminate Attacks, at 5.*fn5 The State Department paints an even more horrifying picture of terror pervading the DRC.

There were reports that Rwandan and Ugandan soldiers allegedly raped women during extensive fighting in Kisangani in May and June.... Rwandan troops and RCD rebels also reportedly engaged in rape of women in public and often in the presence of their families and in-laws. A woman raped in this manner generally is forced out of the village, leaving her husband and children behind. In June, an RCD/Goma soldier... stopped a young girl, Fitina, on the road between Baraka and Mboko and raped her. After he raped her, the soldier discharged his weapon into her vagina. According to a number of credible human rights organizations, marauding bands of armed men in the occupied territories often put victims of rape through further painful humiliations by inserting rocks, sharp sticks, and hot peppers into their vaginas.

U.S. State Department, 2000 Country Reports on Human Rights Practices: Democratic Republic of Congo (February 2001), at 10-11. The reign of terror documented by the State Department includes the following atrocities from Zubeda's region:

On May 14 and 15, in response to an apparent Mai Mai slaying of RCD commander Ruzagura during an ambush on his motorcade, RCD/Goma forces killed hundreds of civilians in and around the town of Katogota in South Kivu Province. According to some reports, RCD soldiers killed as many as 300 villagers by slitting their throats.


Between August 18 and 24, following a period of intense fighting between Mai Mai and RCD forces in the Shabunda region of South Kivu Province, the RCD carried out a punitive campaign against the villages between the towns of Lulingu and Nzovu. Soldiers sent by RCD Commandant Macumu burned the villages; more than 300 villagers were burned alive and 3,000 homes were destroyed.


On July 19, in the Fizi district of South Kivu Province, Banyamulenge and Burundial soldiers killed an estimated 150 persons on the town of Lubamba by slitting their throats. The local population sought refuge in the nearby town of Dine.


There were numerous reported killings along the road from Uvira to Bukavu in South Kivu Province.... The climate of insecurity in the occupied territories and particularly in the Kivu Province forced many local residents to abandon their homes and created food shortages as armed bandits kept farmers from working in their fields.

Id. at 6-7.

B. Asylum and Withholding of ...

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