11-2746-ag
Ilunga v. Holder
BIA
Verrillo, IJ
A079 303 829
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Thurgood Marshall United
3 States Courthouse, 40 Foley Square, in the City of New York,
4 on the 30th day of August, two thousand thirteen.
5
6 PRESENT:
7 ROSEMARY S. POOLER,
8 ROBERT D. SACK,
9 RICHARD C. WESLEY,
10 Circuit Judges.
11 _____________________________________
12
13 BUZANGU EUGENE KALUME ILUNGA, AKA
14 EUGENE B. KALUME, AKA MUTUMBO TABWE,
15 Petitioner,
16
17 v. 11-2746
18 NAC
19 ERIC H. HOLDER, JR., UNITED STATES
20 ATTORNEY GENERAL,
21 Respondent.
22 _____________________________________
23
24 FOR PETITIONER: Justin Conlon, North Haven, CT.
25
26 FOR RESPONDENT: Tony West, Assistant Attorney
27 General; Daniel E. Goldman, Senior
28 Litigation Counsel; Eric W.
29 Marsteller, Trial Attorney, Office
30 of Immigration Litigation, United
31 States Department of Justice,
32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a
2 Board of Immigration Appeals (“BIA”) decision, it is hereby
3 ORDERED, ADJUDGED, AND DECREED that the petition for review
4 is DENIED.
5 Buzangu Eugene Kalume Ilunga, a native and citizen of
6 the Democratic Republic of the Congo, seeks review of a June
7 10, 2011, order of the BIA affirming the January 7, 2010,
8 decision of Immigration Judge (“IJ”) Philip Verrillo, which
9 denied his application for asylum, withholding of removal,
10 and relief under the Convention Against Torture (“CAT”). In
11 re Buzangu Eugene Kalume Ilunga, No. A079 303 829 (B.I.A.
12 June 10, 2011), aff’g No. A079 303 829 (Immig. Ct. Hartford
13 Jan. 7, 2010). We assume the parties’ familiarity with the
14 underlying facts and procedural history in this case.
15 Under the circumstances of this case, we have reviewed
16 the decision of the IJ as supplemented by the BIA. See Yan
17 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The
18 applicable standards of review are well-established.
19 See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.
20 Holder, 562 F.3d 510, 513 (2d Cir. 2009).
21 An IJ may terminate an asylee’s status if the
22 government proves by a preponderance of evidence that
23 “[t]here is a showing of fraud in the alien’s application
2
1 such that he was not eligible for asylum at the time it was
2 granted.” 8 C.F.R. § 1208.24(a)(1), (f). Here, the agency
3 found that Ilunga committed fraud in his 2001 application by
4 falsely misrepresenting that: (1) he had never filed for or
5 been denied asylum in the United States when his 1997 asylum
6 application was denied in 1999; (2) he had lived in
7 Kinshasa, Democratic Republic of Congo (“DRC”), between 1994
8 and 2000, and had been employed there between 1996 and 1999,
9 though he had claimed during his 1999 merits hearing that he
10 had been in the United States between 1996 and 1999; (3) he
11 had never been in removal proceedings; (4) he had not
12 previously entered the United States; and (5) he had not
13 previously used other names though he had assumed two false
14 names to enter the United States. The agency also found
15 that Ilunga’s 2001 application would have been denied
16 because it did not establish changed country conditions and
17 it was contradicted by his previous application.
18 Ilunga does not challenge the agency’s findings that he
19 committed fraud and that his past persecution claim would
20 have been denied. Rather, he contends that the objective
21 evidence that Tutsis like him were persecuted in the DRC
22 sufficiently established his eligibility for relief despite
3
1 his lack of credibility. To the contrary, substantial
2 evidence supports the agency’s determination that the
3 government established a likelihood that his fraud was such
4 that it rendered him ineligible for asylum.
5 Where an IJ has found an applicant’s past persecution
6 claim to be not credible, the applicant may still prevail on
7 a credible theory of future persecution “so long as the
8 factual predicate of the applicant’s claim of future
9 persecution is independent of the testimony that the IJ
10 found not to be credible.” Paul v. Gonzales, 444 F.3d 148,
11 154 (2d Cir. 2006). Here, Ilunga’s claim for future
12 persecution rested on the same factual predicate as his
13 claim for past persecution, namely that he was an ethnic
14 Tutsi and perceived as a Tutsi in the DRC. Moreover,
15 contrary to Ilunga’s assertion, the IJ did not find that he
16 was Tutsi, and Ilunga did not provide any objective evidence
17 that he was, in fact, an ethnic Tutsi. Therefore, Ilunga
18 would have been unable to establish a credible, subjective
19 fear that he would be persecuted due to his Tutsi ethnicity.
20 Cf. Paul, 444 F.3d at 157 (finding that future persecution
21 claim was independent of adverse credibility determination
22
4
1 because applicant’s claim that he was a Christian was
2 credible).
3 Furthermore, Ilunga likely would not have been able to
4 establish an objective fear of persecution because his
5 background materials indicate that the DRC’s government
6 signed a ceasefire with the Tutsi rebels and contain no
7 evidence that continued attacks on civilians are fueled by
8 ethnic rivalries. See 8 U.S.C. § 1101(42)(a); Paul, 444
9 F.3d at 157. Ilunga’s failure to demonstrate that the
10 treatment of Tutsis had worsened since the time his first
11 asylum application was denied also rendered him ineligible
12 to file a successive asylum application. See 8 U.S.C.
13 § 1158(a)(2)(C), (D).
14 For the foregoing reasons, the petition for review is
15 DENIED. As we have completed our review, any stay of
16 removal that the Court previously granted in this petition
17 is VACATED, and any pending motion for a stay of removal in
18 this petition is DISMISSED as moot. Any pending request for
19 oral argument in this petition is DENIED in accordance with
5
1 Federal Rule of Appellate Procedure 34(a)(2), and Second
2 Circuit Local Rule 34.1(b).
3
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
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