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Lusingo v. Gonzales

August 19, 2005


On Petition for Review from the Board of Immigration Appeals. BIA No. A79-239-847.

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


Argued: March 8, 2005

Before: NYGAARD*fn1, McKEE and RENDELL, Circuit Judges.


Fikiri Lusingo petitions for review of the decision of the Board of Immigration Appeals affirming the Immigration Judge's denial of asylum. Although the BIA disagreed with the Immigration Judge's analysis of much of the evidence Lusingo presented during his removal hearing, the BIA ultimately affirmed the IJ's order denying relief. On appeal, Lusingo argues that the BIA's ruling denying his asylum claim is "objectively unreasonable."*fn2 For the reasons that follow, we agree and we will grant the petition for review and remand for additional proceedings consistent with this opinion.

I. Background

Lusingo is a native and citizen of Tanzania. He speaks Swahili, and very little English. On July 23, 2001, when Lusingo was sixteen years old, he entered the United States as a visitor for pleasure in order to participate in the International Boy Scout Jamboree in Fredericksburg, Virginia. His visa allowed him to remain in the United States until January 23, 2002. Prior to coming to the United States, Lusingo lived with both parents and attended school.

However, Lusingo did not remain at the jamboree. Instead, he and two other scouts left the jamboree and went to the home of a relative of one of the boys. They were eventually reported missing, and their disappearance received extensive international media coverage.

When Lusingo learned of the extensive news reports of his disappearance, he became frightened and reported to a police station in Maryland. The police transferred him to the custody of the Immigration and Naturalization Service.*fn3 During the ensuing INS interrogation, Lusingo expressed fear that he would face persecution if returned home because the extensive media coverage of his disappearance would no doubt have embarrassed the government of Tanzania. Lusingo had come to the United States with hopes of converting his visa into a student visa so that he could remain here and receive an education. He therefore had no reason to fear persecution until the media blitz occurred. The extensive coverage of his disappearance resulted in the broadcast of a substantial amount of unflattering information about the Tanzanian government. This included reports that Lusingo feared his government would retaliate by imprisoning him upon his return home, and by economic retaliation against his family. Reports of the possibility of Lusingo's likely imprisonment upon his return mentioned that "it is common for boys to be sexually exploited while in jail in Tanzania."

Lusingo petitioned for asylum based upon his fear that he would be persecuted upon his return home because the Tanzanian government persecutes people who embarrass it. The testimony Lusingo produced during the ensuing removal hearing before the Immigration Judge included the declaration of Dr. Rakesh Rajani. Dr. Rajani's expertise on human rights in Tanzania was not disputed. His declaration states in part:

the government [of Tanzania] looks unfavorably on those who they perceive to have embarrassed the government or that simply reflect poorly on the government, especially in the eyes of the international community ... [Lusingo] ... publicly embarrassed the Tanzanian government by disappearing from the Boy Scout Jamboree . . . which led to the involvement of the U.S. authorities and spurred wide spread media coverage both in the United States and in Tanzania. The Tanzanian government does not turn a blind eye to such embarrassing publicity, as it could mar their relationship with Western donors ... if sent back to Tanzania, [Lusingo] is likely to be arrested and interrogated upon arrival, as the Tanzanian government is clearly quite interested in his case, as is shown from its statements to the American and African press. After he is arrested, he may be subject to beatings, indefinite detention, a prolonged trial.

Dr. Rajani also described Tanzanian jails and the type of torture and treatment endured by prisoners. According to his declaration, this includes: co-mingling of adults and children and the consequent sexual abuse of the children, cells covered with urine and feces, forced manual labor including carrying buckets of human excrement; and lack of due process. Dr. Rajani also explained that, given the unfavorable publicity, Lusingo could be subject to prolonged imprisonment under such conditions without actually being charged with any crime. He recounted an event in 2002 where 120 prisoners were held in a room designed to hold 30. Many of those prisoners died of suffocation. Dr. Rajani's declaration ended with the following statement:

[Lusingo] is at risk of the aforementioned conditions and abuse even if he is not ultimately convicted of a crime. . . . Fikiri would be held as a remand prisoner, where . . . he would endure appalling conditions and be vulnerable to sexual molestation and abuse by adult prisoners or detainees. Thus, [he] is likely to face abuse ...

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