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Kayembe v. Ashcroft

July 01, 2003

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)

Before: Roth, Smith, and CUDAHY,*fn1 Circuit Judges

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

PRECEDENTIAL

Argued on December 2, 2002

OPINION OF THE COURT

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.

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.

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 ...


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