On Petition for Review of an Order of the Board of Immigration Appeals INS No. A78-527-646
Before: Alito and Fuentes, Circuit Judges
and SURRICK,*fn1 District Judge
The opinion of the court was delivered by: Fuentes, Circuit Judge
Beatrice Mulanga, a citizen of the Democratic Republic of the Congo, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing her appeal from the Immigration Judge's ("IJ") denial of her application for asylum and withholding of removal. Mulanga argues that the IJ erred by unreasonably requiring her to provide evidence corroborating her husband's political affiliation and by discrediting two aspects of her account of persecution. She also asserts that the BIA violated her due process rights and INS regulations by summarily affirming the IJ's decision.*fn2 The government counters that the IJ's decision is supported by substantial evidence and that the BIA properly affirmed without opinion the IJ's determination that Mulanga failed to satisfy her burden of establishing eligibility for asylum and withholding of removal. We conclude that: (1) petitioner should have been given an opportunity to provide corroborating documentation of her husband's political affiliation or, if she could not produce such evidence, an opportunity to explain her inability to do so; and (2) the decision is not supported by substantial evidence. We therefore grant the petition for review.
I. Factual and Procedural Background
Except as otherwise noted, the following account is based on two sources. First, the events relating specifically to Mulanga and her family are based on Mulanga's testimony (the credibility of which is disputed). Second, information about political events and conditions in the Democratic Republic of Congo (DRC) is taken from the U.S. State Department Reports which she introduced into evidence. Mrs. Mulanga was born on June 4, 1959, in Zaire, now called the Democratic Republic of the Congo ("DRC"). In 1978, she married Celestin Kabamba, a high school teacher. Their seven children were born in Kinshasa between August 1978, and January 1992. Mrs. Mulanga's husband was a member of the opposition party, the Union for Democracy and Social Progress ("UDPS"). According to Mrs. Mulanga, the UDPS fought the dictatorship in order to establish a democracy. She testified that her husband worked "for the young of the party, trying to get them together. He was the local person... His primary function was to work with the young people and to help them how to function within the party. And then, to help them not to be afraid what's going around." A.R. at 154. Her own involvement with the UDPS consisted of taking part in the group's protest rallies. Also, she often cooked for the party members.
On April 4, 1995, security agents of the government of Mobutu Sese Seiko *fn3 arrested her husband because of his political beliefs. Mrs. Mulanga testified that he was detained in a "house of the government" for two days and beaten badly, which left "his face puffed and a lot of scars on his arms." Id. at 155-56. He was released when representatives from the UDPS pleaded with the government to release him.
In June 1995, Mrs. Mulanga participated in a protest march organized by UDPS in Kinshasa, the purpose of which was "to fight the dictatorship" and "the restoration of democracy." Id. at 157. One of Mobutu's soldiers who was trying to keep the march from taking place shot Mulanga in the chest. She fell unconscious and was taken to the Clinic Ngaliema, where she stayed for three and a half weeks. Mrs. Mulanga supplied a medical certificate from Dr. Okenge, who treated her at the Clinic shortly after the shooting. An INS medical report confirms that Mrs. Mulanga was shot, noting that she sustained a second degree gunshot wound.
In 1997, a political change occurred. Laurent-Desire Kabila forcibly took over Zaire, thereby ending the regime of Mobutu. He renamed the country the Democratic Republic of the Congo. See id. at 333. He ruled by decree, without the constraint of a constitution, and formed "People's Power Committees" to monitor activities of citizens at their neighborhoods, schools, and workplaces. Id. According to the 2000 State Department Report, his government was responsible for human rights abuses, including "extra-judicial killings, disappearances, torture, beating, rape and other abuses." Id. at 334. Also, the judiciary was corrupt and it permitted arbitrary arrests and detentions to become common. See id. at 333, 341. "Security forces... used arbitrary arrest to intimidate outspoken opponents and journalists. Charges rarely were filed, and the political motivation for such detentions was obscure... [d]etention without charge [was] a frequent problem under the Kabila administration... [t]here were many secret or unofficial detention centers in Kinshasa...." Id. at 341.
After Laurent Kabila came to power in 1997, petitioner and her husband continued to have problems because of their political beliefs. During 1998, security forces would often come to their home "to arrest [Mr. Mulanga] because of his political beliefs" and "to get him to get out of the political scene." Id. at 159. Mrs. Mulanga testified that the Laurent Kabila government was "looking for him because of his politics, and he was anti-government." Id. at 183. Mr. Mulanga often fled to friends' houses when the authorities came looking for him.
In May 1998, petitioner went to a local clinic because she was having problems with her chest. During her absence, her three youngest children stayed at the local church while her husband stayed at home with the four oldest children. When she returned home, neighbors told her that people had come to the house looking for her husband and that he and the children who were with him ran and jumped the fence in the back of the house. She waited in her home for her husband and children to return. They never did. She has not seen her husband or children since that day and does not know their whereabouts.
Two or three days later, Kabila security agents came to Mulanga's home at 1:00 in the morning, showed her their cards, and demanded to know the whereabouts of her husband. They told her that "if you don't show us where your husband is, that's going to be a problem." Id. at 166. According to Mrs. Mulanga, they said her husband had "been doing a bad thing... [a]nd they said that, you people, you're anti-Kabila doing the politic here." Id. The security agents stayed in petitioner's home for about 15-20 minutes, during which time they taped her mouth and beat her up while saying "you've got to tell us the whereabouts." Id. at 167. They then pushed her into their car and drove about an hour to the government house in Kinsuca, where seven other people were being held. She was held at the house for 6 days, during which she was given no food, repeatedly asked the whereabouts of her husband, beaten, and pulled to the ground by her hair.
On the sixth day, Mulanga escaped from the government house with the help of a Kabila soldier named Alfonse, who was a friend of hers and of her husband. She testified that Alfonse "came there and they called my name and he helped me to get out of there." Id. at 168. Alfonse brought petitioner to the Zaire River (Congo River), where she boarded a boat along with two other people headed for Brazzaville in the Republic of the Congo, a separate country. She entered Brazzaville and remained there from June to November 1998 with Marie Jean Ngalulu, a woman from her village.
While Mulanga was in Brazzaville, civil war broke out. See id. at 239. As a result, there was destruction and looting in much of the southern part of the country, "particularly in Brazzaville, where more than one-third of the country's population normally resides. Fighting and heavy looting led to the destruction of many southern towns, and much of Brazzaville, the capital. An estimated 800,000 civilians, approximately one-third of the country's estimated population of 3 million, were displaced." Id. As petitioner and her friend ran, shots were fired. Her friend was hit by a bullet. When she noticed her friend on the ground, not moving, Mulanga kept running for her life. She ended up at the Bethel church where she was taken in and allowed to stay for 3 years.
While Mulanga was at the Bethel church another political change occurred in her former country. On January 16, 2001, Laurent Kabila was assassinated by one of his guards. His son, Joseph Kabila, took control of the government of the DRC 10 days later. See id. at 212. As his father had before him, Joseph Kabila ruled by decree and without the constraint of a constitution. According to the State Department, security agents monitored mail passing through both private carriers and the DRC's "dysfunctional" state mailing system and there was a widespread belief that the government monitored telephone communications. See id. at 224. Although there were fewer reported cases of human rights abuses, "[i]n general security forces committed these abuses with impunity. Prison conditions remained harsh and life threatening. Security forces continued to arbitrarily arrest and detain citizens; however, the number of such cases decreased. Prolonged pretrial detention remained a problem, and dozens of suspects remained in detention without formal charges filed, without any evidence presented against them, and without an opportunity to defend themselves in court." Id. at 213. The 2001 State Department Report also indicates that "[t]he Government operated 220 known prisons and other places of detention, and in all such facilities, conditions remained harsh and life threatening; there reportedly were many other secret or informal detention centers." Id. at 219.
Other abuses which continued during the Joseph Kabila regime were also noted by the 2001 ...