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Matumona v. Barr

United States Court of Appeals, Tenth Circuit

December 30, 2019

ADAMA HEUREUX MATUMONA, a/k/a Nikuna Adao, Petitioner,
v.
WILLIAM P. BARR, United States Attorney General, Respondent. NEW MEXICO IMMIGRANT LAW CENTER; SANTA FE DREAMERS PROJECT; AMERICAN IMMIGRATION LAWYERS ASSOCIATION; STEVEN R. ABRAMS; JEFFREY S. CHASE; TEOFILO CHAPA; GEORGE CHEW; BRUCE J. EINHORN; CECELIA M. ESPENOZA; NOEL FERRIS; JOHN F. GOSSART, JR.; MIRIAM HAYWARD; REBECCA JAMIL; CAROL KING; ELIZA KLEIN; ELIZABETH A. LAMB; MARGARET MCMANUS; CHARLES PAZAR; GEORGE PROCTOR; LAURA RAMIREZ; JOHN W. RICHARDSON; LORY D. ROSENBERG; SUSAN ROY; PAUL W. SCHMIDT; WILLIAM VAN WYKE; GUSTAVO D. VILLAGELIU; POLLY WEBBER, Retired Immigration Judges and Former Members of the Board of Immigration Appeals, Amici Curiae.

          Petition for Review from the Board of Immigration Appeals

          Tassity Johnson (Matthew E. Price, Jenner & Block LLP, Washington, D.C., and Keren Zwick and Tania Linares Garcia, National Immigrant Justice Center, Chicago, IL, with her on the briefs), Jenner & Block LLP, Washington, D.C., for Petitioner.

          Remi Da Rocha-Afodu, Trial Attorney (Joseph H. Hunt, Assistant Attorney General, Civil Division, and Mary Jane Candaux, Assistant Director, Office of Immigration Litigation, with her on the brief), U.S. Department of Justice, Washington, D.C., for Respondent

          Nicole C. Henning, Jones Day, Chicago, Illinois, filed an Amici Curiae brief for the New Mexico Immigrant Law Center, Santa Fe Dreamers Project, and American Immigration Lawyers Association, in support of Petitioner.

          Jean-Claude André and Katelyn N. Rowe, Sidley Austin LLP, Los Angeles, California, filed an amici curiae brief for Retired Immigration Judges and Former Members of the Board of Immigration Appeals, in support of Petitioner.

          Before LUCERO, HARTZ, and MATHESON, Circuit Judges.

          HARTZ, CIRCUIT JUDGE.

         Petitioner Adama Matumona is a native and citizen of the Democratic Republic of the Congo (DRC). He petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his application for asylum and withholding of removal. Regarding asylum, Petitioner argues that the BIA (1) erred in determining that he had firmly resettled in Angola, which barred him from applying for asylum, and (2) engaged in improper factfinding in determining he was ineligible for an exception to the firm-resettlement bar. On withholding of removal, he argues that the BIA improperly rejected his claims of past persecution and a well-founded fear of future persecution. Petitioner also contests the BIA's determination that his due-process rights and his statutory right to a fair hearing were not violated by the failure of the immigration judge (IJ) to adequately develop the record and to implement appropriate safeguards for a pro se litigant detained in a remote facility.

         Exercising jurisdiction under 8 U.S.C. § 1252(a), we affirm on all issues except that we remand to the BIA to consider Petitioner's claim that he is entitled to withholding of removal because of the alleged pattern or practice of the DRC government of persecuting persons with Petitioner's political views.

         I. BACKGROUND

         A. Factual Background

         Petitioner presented himself to immigration officials at the United States border on January 4, 2017. He was detained and placed in removal proceedings as a noncitizen seeking admission without valid entry documents. See 8 U.S.C. § 1182(a)(7)(A)(i)(I). During the proceedings he was detained at the Cibola County Correctional Facility in Milan, New Mexico.[1]

         At Petitioner's first master-calendar hearing in immigration court, he informed the IJ he was seeking asylum because he feared returning to the DRC. The IJ gave him a list of legal-aid attorneys and an asylum application. He expressed concern about being able to complete the application in English, which he does not understand. The IJ explained that although she could not complete the form for him, "we'll probably have to find someone to help you." Certified Administrative Record (CAR) 441. Petitioner, who does understand French, ultimately completed his asylum application with the help of a French-speaking volunteer at Cibola. His asylum application alleged the following facts:[2] Petitioner was born in Kinshasa, DRC, and was a leader for five years in a political movement that opposed the then-government of the country. He took part in a January 2015 opposition march where state security officials attacked participants and killed at least five while the participants fled. After this incident he "was told that [he] needed to escape," so he fled to Angola with his common-law wife and changed his name. CAR 550. He feared the government would kill him if he returned to the DRC because of his political activism.

         At the merits hearing the IJ offered Petitioner a continuance but he declined, saying that he wanted to proceed because he was currently "cut off from [his] family" and was dealing with unspecified medical issues. CAR 461-62. His asylum application was entered as an exhibit at the hearing, and the government submitted the 2016 Department of State Human Rights Report for the DRC. Petitioner testified that he had been a community organizer for Union pour la Démocratie et le Progrès Social (UDPS), a political party that opposed then-President Kabila's regime. His UDPS activities included organizing youth and others in his neighborhood to march in protest. In 2013 and 2014 he helped organize marches in response to the government's "Operation Likofi," which targeted opposition leaders and led to the kidnapping and killing of over 400 people. He went into hiding after the 2013 march, but he was able to move about in the open, albeit cautiously, after the march in 2014. A January 2015 march protested a proposed constitutional change to allow President Kabila to serve a third term. President Kabila responded by sending his men to the streets to injure and kill march participants. The government then began looking for the protest leaders, including Petitioner. Although he had not been physically harmed in the DRC, the killings of some organizers and the ongoing search for others caused him to fear for his safety. He fled to Angola in February 2015.

         Petitioner initially fled to Angola alone, but he was later able to bring over his eight children and wife. His wife had their ninth child in Angola. He said that he was still fearful for his safety in Angola because the Angolan government is an ally of the Congolese government, and thus he could still be discovered and harmed there. He also testified, however, that he experienced no actual problems in Angola. To get documents to leave Angola, Petitioner found an Angolan family to "adopt" him so he could take their Angolan name and get an Angolan passport. CAR 467. When asked by the DHS attorney, "So you also have citizenship in Angola, correct," he responded: "Yes. I did went-I did go to through the process of trying to get a document to become an Angolan, but it is just a way of me getting the right documents so that I can move from Angola to Congo-to Brazil, but my real identity, I am a Congolese." Id. at 475. And when later asked by the IJ, "[W]hen you became a citizen of Angola, did you have to renounce your citizenship in the Democratic Republic of Congo," he responded similarly, saying: "It is a need. It was a need-base kind of situation. I was never intended to become an Angolan. It was just a way for me to get the papers that I needed to get here but I maintain that, I still have my Congolese nationality and I think myself as a Congolese." Id. at 481. After staying in Angola for a little over a year, he left for Brazil without his family in March 2016. He chose Brazil because he believed it was easiest to obtain a Brazilian visa. He stayed in Brazil until he traveled to the United States to seek asylum.

         B. Procedural History

         The IJ denied Petitioner's request for asylum on the ground of statutory ineligibility because he had firmly resettled in Angola. See 8 U.S.C. § 1158(b)(2)(A)(vi). The IJ denied his request for withholding of removal on the merits, ruling that he had not established past persecution or a clear probability of future persecution. Petitioner's request for protection under the CAT was also denied.

         Petitioner obtained pro bono counsel and appealed the IJ's decision to the BIA. He also filed a motion asking the BIA to remand his case to the IJ to consider new allegedly material evidence, including additional country-conditions evidence and an affidavit of his own. The BIA dismissed the appeal. It affirmed the IJ's ruling that Petitioner had firmly resettled in Angola and decided that he did not qualify for any exception to the firm-resettlement bar to asylum. It also affirmed the IJ's decision that Petitioner was not eligible for relief under withholding of removal or the CAT. And it rejected Petitioner's due-process arguments and denied his motion to remand.[3]

         When Petitioner filed his first petition for review with this court, the government moved to remand to the BIA for consideration of his testimony that he fled the DRC because government officials were looking specifically for him. We granted the motion with instructions that the BIA could consider any matter Petitioner had properly preserved.

         On remand the BIA dismissed Petitioner's appeal on the same grounds as before. The BIA stated that it had previously acknowledged the testimony that officials were looking for Petitioner and that even accepting the testimony as true, Petitioner could not establish that he faced an individualized risk of harm.

         II. DISCUSSION

         Petitioner appeals the BIA's denial of both asylum and withholding of removal.[4]He also makes several procedural challenges to the administrative proceedings, some of which are discussed below as part of his substantive claims and some of which are addressed afterwards.

         A. Standard of Review

          "We consider any legal questions de novo, and we review the agency's findings of fact under the substantial evidence standard." Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). Under the substantial-evidence standard, we examine whether the "factual determinations are supported by reasonable, substantial and probative evidence considering the record as a whole." Id. at 1150. We have characterized the issue of whether an alien has established persecution as a question of fact. See Vicente-Elias v. Mukasey, 532 F.3d 1086, 1091 (10th Cir. 2008).[5] Also, we must "decide the petition [for review] only on the administrative record on which the order of removal is based." 8 U.S.C. § 1252(b)(4)(A). "[O]ur review is confined to the reasoning given by the IJ [and BIA], and we will not independently search the record for alternative bases to affirm." Elzour, 378 F.3d at 1150 (citing SEC v. Chenery Corp., 318 U.S. 80, 95 (1943)).

         B. Asylum

         Only refugees are eligible for asylum. To be considered a refugee, an applicant "must demonstrate either past 'persecution or a well-founded fear of [future] persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'" Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir. 2001) (quoting 8 U.S.C. § 1101(a)(42)(A)) (brackets in the original). A refugee is not eligible, however, if he "was firmly resettled in another country prior to arriving in the United States." Elzour, 378 F.3d at 1149; see 8 U.S.C. § 1158(b)(2)(A)(vi). An applicant "is considered to be firmly resettled in a third country when 'prior to arrival in the United States, he or she entered into another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement.'" Elzour, 378 F.3d at 1149 (quoting 8 C.F.R. § 208.15).

         An applicant for relief from removal has the burden of establishing eligibility for asylum. See 8 C.F.R. § 1240.8(d). "If the evidence indicates that one or more of the grounds for mandatory denial of the application for relief may apply, the alien shall have the burden of proving by a preponderance of the evidence that such grounds do not apply." Id. (emphasis added). Thus, if the government presents evidence indicating that the applicant may have firmly resettled in a third country, the applicant bears the burden of proving ...


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