Malonga v. Holder

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 09-2218
___________

Noel Malonga, *
*
Petitioner, *
* Petition for Review from the
* Board of Immigration Appeals.
v. *
*
Eric H. Holder, Jr., Attorney General *
of the United States, *
*
Respondent. *
___________

Submitted: January 14, 2010
Filed: September 14, 2010
___________

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.
___________

MELLOY, Circuit Judge.

Noel Malonga, a native and citizen of the Republic of the Congo ("the Congo"),
petitions for review of an order of the Board of Immigration Appeals ("BIA") denying
withholding of removal. He claims past persecution and a clear probability of
persecution upon return on account of his ethnicity and political opinion. We grant
the petition for review and remand for reconsideration of whether he faces a clear
probability of persecution based on political opinion.
 I.

A. Factual Background

In Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) ("Malonga I"), we
described the basic facts of this case. We now revisit the factual background, first
summarizing the relevant documentary evidence concerning the various regimes and
conflicts in the Congo and then recounting the basis of Malonga's claim.

1. Situation in the Congo

The record paints the Congo as a country dominated by a series of totalitarian
regimes punctuated, particularly in recent years, by violent conflict. In 1968, Marien
Ngouabi led a military coup and held the presidency until his assassination in 1977.
In 1979, Denis Sassou-Nguesso became president, which according to State
Department reports, launched two decades of turbulent, single-party politics
"bolstered by Marxist-Leninist rhetoric." Sassou-Nguesso is a northerner of Mbochi
ethnicity.

In the 1990s, the country ostensibly transitioned to a multiparty democracy, but
political stability remained elusive. Numerous opposition political parties were
formed at the time, including the Mouvement Congolaise pour la Démocratie et le
Dévélopment Intégral (Congolese Mouvement for Democracy and Integral
Development, hereinafter "MCDDI"). In 1992, southerner Pascal Lissouba was
elected president. Violent civil unrest subsequently broke out in June and November
1993 over the results of hotly disputed legislative elections. Risk of large-scale
insurrection subsided after the parties accepted the decision of an international board
of arbiters in February 1994. Lissouba attempted to eliminate Sassou-Nguesso's
political-military faction as the country headed for a new round of elections in 1997,

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igniting four months of civil war. Sassou-Nguesso eventually seized the presidency,
toppling the Lissouba government.

Fighting between forces loyal to Sassou-Nguesso and several southern rebel
groups engulfed the country in 1998. The rebel militias included the Cocoyes, who
supported Lissouba, and the Ninjas, who are of mostly Lari ethnicity and were
affiliated with Bernard Kolelas,1 the founder of the MCDDI. The conflicts were
largely concentrated in the south, including the Pool region surrounding the capital of
Brazzaville.

Civilians found themselves caught in the crossfire, subjected to both
indiscriminate violence and instances of deliberate brutality by all factions.
Undisciplined troops and security forces associated with the government reportedly
detained, beat, raped, "disappeared," and killed civilians, arbitrarily searched homes,
and engaged in widespread looting. Government allied-forces were also known to
single out individuals, mostly southern men, for arrest and even death on suspicion
that they supported the Ninjas or the Cocoyes. The record paints the rebels as little
better. Militias, particularly the Ninjas and other groups based in the southern Pool
region, executed civilians thought to back the government based on their ethnicity.
The militias of the Lari ethnic group reportedly looted property, raped women, and
killed civilians, even members of their own ethnicity. In all, the war left nearly a third
of the population displaced and thousands dead.

The Sassou-Nguesso government signed a cease fire with most rebel groups in
late 1999, leading to a measure of calm. For example, the State Department observed
in its 2001 country conditions report that it had received no accounts of government
violence toward southern ethnic groups in the previous year and that politically

1
Kolelas served as Prime Minister for the final months of the Lissouba regime.

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motivated disappearances and killings also ceased. Lissouba and Kolelas themselves
were effectively forced into exile and tried in absentia for war crimes.

State Department country conditions reports and other articles in the record
acknowledge the 1997–1999 conflicts exhibited ethnic overtones, and other courts
have recognized many of the recent conflicts to be ethno-political in nature. See Passi
v. Mukasey, 535 F.3d 98, 102–03 (2d Cir. 2008) (noting, for example, that Brazzaville
and the Pool region exhibited what appeared to be some of the most severe ethnic and
political violence); Mapouya v. Gonzales, 487 F.3d 396, 402 (6th Cir. 2007) ("Strong
ethnic overtones are present in Congolese politics, and the 1997-1998 civil war was
no different."). Documentary evidence suggests that political and the most significant
inter-ethnic tension has split roughly along geographical lines, pitting northerners
against the more prosperous southerners. State Department reports, however, also
caution against oversimplifying the unrest, and politics more generally, as north
versus south. Each leader—Sassou-Nugesso, Lissouba, and Kolelas—has drawn
heavy support from his own ethnic group in his immediate entourage. Nevertheless,
the reports advise that the correspondence between "ethnic-regional and political
cleavages" was inexact and only approximate, and that actual support of the current
and recent governments "included persons from a broad range of ethnic and regional
backgrounds."

In 2002, the latest year represented in the record, media reports documented
renewed conflict in southern Congo between government forces and the Ninjas
following Sassou-Nguesso's reelection. The Ninjas attacked government military
posts in the Pool region, allegedly responding to government plots to arrest the
militia's leader. Civilians were once again swept up in the fighting and suffered
abuses by both sides, though particularly by the government, including killings, rapes,
abductions, looting, and other destruction of property.

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 2. Malonga's claims

Malonga is a native of the southern Pool region, and is of Lari ethnicity, a sub-
group of the larger Kongo tribe. The Kongo account for approximately forty-eight
percent of the country's population and constitute the main tribal group in the south.
The Lari group can be identified by accent, dialect, and surname and are concentrated
geographically in the Pool region.

Malonga is or has been a member of several political groups and parties.2
Although several of Malonga's affiliations coincide with his ethnic-regional roots, the
record also suggests a broader, pro-democracy motivation behind his nearly four
decades of opposition to the regimes of three different presidents.

In 1971, at age fourteen, Malonga participated in a demonstration against the
Ngouabi regime. According to Malonga, Sassou-Nguesso, who was then the chief-of-
staff of the armed forces, sent the military to disperse the protest. Soldiers beat
Malonga as they broke up the demonstration and he suffered injuries that required
hospital treatment and left scars on his legs and back. In 1974, Malonga joined in a
second demonstration but escaped unharmed when the military again responded
violently.

The next incident occurred in 1977, when Malonga claims police broke up an
anti-Ngouabi political meeting he had attended. He was detained for forty-eight hours

2
According to an affidavit Malonga submitted in support of his application, his
political affiliations include: the General Union of Congolese School Children and
Students from 1971 to 1974; the Union de la Jeunesse Socialist Congolaise from 1974
to 1990; the Congolese Syndicate Confederation from 1986 onward; MCDDI from
1991 onward; the Mbongui, a political association for expatriate Congolese, from
1996 onward; and the Collective of Congolese Scholars Native from the Pool, a
political organization based in France uniting scholars from the Pool region, which he
joined while residing in the United States.

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without food or water and was beaten, which caused him to bleed from his mouth.
Malonga claims to have been released by a police inspector who knew his father.
Malonga also claims to have suffered severe headaches afterward, for which he sought
treatment in 1982 and 1983.

Following graduation from university in 1985, Malonga went to work for the
government, which by then was headed by Sassou-Nguesso. He testified a
government job was his only option as a degree holder. He apparently retained a
government post through the transition to the Lissouba regime until his departure in
1993.

In 1990, while a director of a state-run farm, Malonga ordered his employees
to strike as part of a larger nation-wide strike against the Sassou-Nguesso government.
Malonga alleges that he was immediately demoted as punishment, transferred back
to Brazzaville, and forced to sit at a desk with nothing to do.

Politics liberalized not long after, and Malonga joined and became active in the
MCDDI party. When the democratically-elected Lissouba government proved
repressive, Malonga took-part in an anti-government demonstration organized by the
MCDDI and other opposition groups in June 1993. Soldiers dispersed the protest
with gunfire, killing four people. Malonga suffered some bruising in the resulting
rush but was not seriously injured. He maintains Lissouba's forces came looking for
him later that night, prompting him to run from his home in the Diata district of
Brazzaville, which he states was a stronghold of Lissouba supporters. When the
soldiers could not find him, they marked his house with an "X," allegedly indicating
that it should be destroyed. They also wrote "we will have your skin," which Malonga
interpreted as a death threat. Malonga subsequently experienced death threats from
Lissouba supporters at work.

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 Malonga had received a scholarship to continue his education in the United
States the year before and was preparing to depart around this time. A superior of a
northern ethnicity refused to sign his departure papers, referring to the Kongo and the
MCDDI as "troublemakers" and telling Malonga, "You have to stay here in the
country to face the consequences of what you are doing." Malonga claims his
departure was delayed until he was able to obtain permission from a member of his
own tribe and who came from the same geographical region, outside the authorized
channels. He entered the United States as an exchange visitor in August 1993. He
completed his masters degree in 1999.

Sometime in 1994, after Malonga's arrival in the United States, his house in
Brazzaville was destroyed and his possessions were looted. As described above, civil
conflict stemming from disputed elections had broken out in recent months. Malonga
claims Lissouba's supporters targeted his home as well as the homes of other Pool
natives.

Malonga subsequently lost contact with his family during the conflicts of the
mid to late1990s. He testified that his wife and child disappeared in 1996 and that he
believes his parents are dead. Specifically, Malonga testified that his father was shot
in 1999, and a letter from his brother confirms their father died in Brazzaville in early
2000. He also believes his family was targeted because of ethnicity or because of his
political activities.

Malonga testified that he fears returning to the Congo because he believes he
would be arrested and potentially executed by the government. He avers that the
Kongo have suffered and continue to face persecution, particularly at the hands of
Sassou-Nguesso and the current government. He also believes he would be a target
because of his political affiliations and activities and has stated that he would continue
to press for democracy if returned.

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B. Procedural Background

In September 2007, the BIA affirmed the Immigration Judge's ("IJ") decision
denying Malonga's 2001 petition for asylum, withholding of removal, and relief under
the Convention Against Torture ("CAT"). Malonga petitioned this court for review.
In Malonga I, we denied the petition in part and granted it in part. We held that we
lacked jurisdiction to review the IJ's determination that Malonga's asylum application
was untimely filed. 546 F.3d at 551, 556. We also denied the petition as to CAT
relief because the record did not compel a conclusion contrary to the agency's. Id. at
555.

We granted the petition and vacated the BIA's decision as to withholding of
removal. First, we held that the IJ had applied an incorrect legal standard in defining
past persecution and remanded for findings under the appropriate standard. Id. at
552–53. Second, we addressed the IJ's finding that the Lari ethnic group of the larger
Kongo tribe was not a particular social group because the Kongo constitute a
substantial minority of the population. Id. at 553–54. Applying the standard adopted
by the BIA in In re Acosta, 19 I. & N. Dec. 211 (BIA 1985), and In re C-A-, 23 I. &
N. Dec. 951 (BIA 2006), we held that the Lari group of the Kongo tribe could
constitute a particular social group. Malonga I, 546 F.3d at 554.

On remand for the withholding-of-removal claim, the BIA dismissed the appeal.
It observed that the size of the Kongo tribe was important to its consideration of his
claim. It further noted that Malonga had mainly testified that his problems were due
to his political involvement and the region where he was from, where the Lari were
located. It also stated that he had largely failed to differentiate between problems he
suffered because of his political activities and those due to his ethnicity.
Consequently, the BIA determined that Malonga's politics appeared intertwined with
his ethnic identity. As discussed further below, the BIA implicitly assumed that

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Malonga was credible,3 but concluded nonetheless that he did not suffer past
persecution. Specifically, it found that the mistreatment he suffered did not rise to the
level of persecution and, alternatively, that most incidents, particularly those in the
1990s, did not occur on account of a protected ground. The BIA also held that he did
not establish a clear probability of future persecution.

II.

We review the BIA's decision as the final agency action. See Kebede v
Gonzales, 481 F.3d 562, 564 (8th Cir. 2007) (per curiam). However, to the extent the
BIA adopted the reasoning of the IJ, we will consider both the BIA's and IJ's opinions.
See Rafiyev v. Mukasey, 536 F.3d 853, 856 (8th Cir. 2008). We evaluate questions
of law de novo and afford substantial deference to the BIA's interpretation of
immigration law and regulations. Cherichel v. Holder, 591 F.3d 1002, 1010 (8th Cir.
2010). We consider administrative findings of fact under the deferential substantial-
evidence standard. Miah v. Mukasey, 519 F.3d 784, 787 (8th Cir. 2008). "We will not
overturn an agency's decision unless [the petitioner] demonstrates that the evidence
not only supports a contrary conclusion, but compels it." Bracic v. Holder, 603 F.3d
1027, 1034 (8th Cir. 2010) (quotation omitted).

The Attorney General must grant withholding of removal if Malonga proves
his "life or freedom would be threatened" in the Congo on account of one of five
protected grounds, including political opinion or social group. 8 U.S.C.
§1231(b)(3)(A); Beck v. Mukasey, 527 F.3d 737, 739 (8th Cir. 2008). If Malonga
establishes that he suffered past persecution on account of a protected ground, he is
entitled to a rebuttable presumption of future persecution. 8 C.F.R.
§ 1208.16(b)(1)(i); Beck, 527 F.3d at 739. Without a showing of past persecution,
Malonga must independently demonstrate a "clear probability" of future persecution

3
As noted in Malonga I, the IJ did not make an explicit credibility finding.

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to obtain withholding of removal. Beck, 527 F.3d at 739. The clear-probability
standard is more onerous than the well-founded-fear standard of asylum. Ladyha v.
Holder, 588 F.3d 574, 579 (8th Cir. 2009). In the absence of a statutory definition
for persecution, we have held that it is an "extreme concept" that involves the
infliction or threat of death, torture, or injury to one's person or freedom, on account
of a protected characteristic. Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007).

A. Past Persecution

Malonga first argues that the BIA failed to consider all incidents of past
mistreatment. It is well established that the BIA need not list "every possible positive
and negative factor in its decision" and has "no duty to write an exegesis on every
contention." E.g., Averianova v. Holder, 592 F.3d 931, 936 (8th Cir. 2010) (quotation
omitted). The agency is only required to "consider the issues raised, and announce its
decision in terms sufficient to enable a reviewing court to perceive that it has heard
and thought and not merely reacted." Barragan-Verduzco v. I.N.S., 777 F.2d 424,
426 (8th Cir. 1985) (quotation omitted). The BIA did not identify or discuss all
individual events, including Malonga's demotion, the threat "we will have your skin,"
and the purported death threats at work. We nonetheless conclude that it recognized
and considered the breadth of Malonga's claim. The opinion's recitation of facts
suggests that the BIA generally understood that the claim comprised both threats as
well as actual harm to Malonga, his belongings, and his relatives. Cf. Ngengwe v.
Mukasey, 543 F.3d 1029, 1036–37 (8th Cir. 2008) (remanding for further analysis
where the agency did not fully consider the non-physical actions of the petitioner's
alleged persecutors). The BIA also stated that it considered Malonga's "problems" in
the Congo "in the aggregate," suggesting that the BIA reflected upon more than the
specific examples it called out in its analysis and indicating it reviewed the cumulative
effect of the mistreatment. See Barrangan-Verduzco, 777 F.2d at 426 (affirming the
denial of relief in part where the opinion showed the agency considered the
petitioner's contentions cumulatively).

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 Malonga next asserts that the record compels the conclusion that he endured
past persecution. Upon careful consideration of the record, we disagree. Taken as
a whole, we cannot say the record shows more than periodic instances of mistreatment
that do not rise to the level of persecution and other incidents that cannot be clearly
connected to a protected ground.

The BIA specifically held that the beatings and detention in the 1970s did not
rise to the level of persecution, and we cannot say the record conclusively establishes
the contrary. Limited detentions, even lasting two or three days, do not typically
amount to persecution. See Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir. 2004).
Although the beatings and injuries Malonga suffered are not insignificant, the
presence of physical harm does not require a finding of past persecution. Tawm v.
Ashcroft, 363 F.3d 740, 743 (8th Cir. 2004). "It is also important to consider whether
an act of violence is an isolated occurrence, or part of a continuing effort to persecute
on the basis of a factor enumerated in the statute. Generally speaking, evidence of
isolated violence does not compel a finding of persecution." Ngure v. Ashcroft, 367
F.3d 975, 990 (8th Cir. 2004). Here, each instance of physical abuse was relatively
isolated, occurring immediately after Malonga's participation in political
demonstrations, and both occurred more than a decade before the next instance of
mistreatment. Therefore, these incidents do not reflect an ongoing effort to seek out
Malonga out for harm on account of a protected ground. Equally as important,
Malonga remained in the Congo for sixteen years following the last incident, without
further physical abuse or injury and with the ability to pursue an education and a
career with relatively little interference for a number of years. These factors cut
against a finding of persecution. See Quomsieh v. Gonzales, 479 F.3d 602, 606 (8th
Cir. 2007) (holding no past persecution where the petitioner endured a four-hour
detention and beating that resulted in cracked knee joint but remained in the country
thirteen more years without similar incident); Kondakova v. Ashcroft, 383 F.3d 794,
797 (8th Cir. 2004) (observing the fact that petitioner remained in the country for a

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year and finished her education following alleged kidnapping of her daughter weighed
against a finding of past persecution).

We conclude the remaining mistreatment Malonga endured before leaving the
Congo is also insufficiently severe, either alone or in combination, to compel a finding
of persecution. Malonga does not allege that the 1990 demotion prevented him from
earning a living or even caused economic hardship to support a conclusion of
economic persecution. See Makatengkeng v. Gonzales, 495 F.3d 876, 882–83 (8th
Cir. 2007) (discussing economic persecution). Further, his forced idleness at work,
while likely demoralizing, does not amount to mental or emotional persecution, as he
argues. See Shoaira v. Aschcroft, 377 F.3d 837, 844 (8th Cir. 2004) (considering
psychological damage as persecution).

Likewise, the threats Malonga experienced following the 1993 demonstration
do not require a finding of past persecution. Assuming the warning "we will have
your skin" is properly considered a threat of death, threats that are "exaggerated, non-
specific, or lacking in immediacy," as this was, do not support a finding of
persecution. Corado v. Ashcroft, 384 F.3d 945, 947–48 (8th Cir. 2004) (holding that
a single "specific, credible, and immediate" death threat on account of political
opinion could constitute persecution); see also Ladyha, 588 F.3d at 577–78 (holding
no past persecution despite the fact that assailants threatened petitioner at knifepoint
and stated they would show him who was "king of the city"). Furthermore, Malonga
has failed to point to any detail concerning the death threats at work, and such vague
descriptions are insufficient to necessitate reversal. Notably, despite the various
threats and his superior's hostility toward his ethnic and political groups, Malonga was
able to leave the country not long after with the government's knowledge. He has
also not alleged that any of these threats caused him to flee the Congo; rather, he
arrived in the United States, more or less as scheduled, to complete a pre-arranged
course of study. These considerations weigh against a finding of persecution. See
Alanwoko v. Mukasey, 538 F.3d 908, 912–13 (8th Cir. 2008) (observing that

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petitioner was not fleeing persecution on arrival in the United States, which
contributed to a finding of no past persecution).

Finally, the record does not compel the conclusion that the events occurring
after Malonga left the Congo were on account of a protected ground. It is well
established that "[h]arm arising from general conditions such as anarchy, civil war, or
mob violence will not ordinarily support a claim of persecution." Mohamed v.
Ashcroft, 396 F.3d 999, 1003 (8th Cir. 2005). To warrant relief, the applicant bears
the burden of providing some evidence that the persecutors were motivated to harm
him, at least in part, on account of a protected ground. Id. at 1003–04; see also Hassan
v. Ashcroft, 388 F.3d 661, 666 (8th Cir. 2004). Therefore, "the harm suffered must
be particularized to the individual rather than suffered by the entire population."
Mohamed, 396 F.3d at 1003. The fact that the mistreatment occurred during conflicts
that can be broadly categorized as political or ethnic in nature does not establish the
requisite particularized persecution. See id. at 1002–03; see also Quomsieh, 479
F.3d at 606; Feleke v. I.N.S., 118 F.3d 594, 598 (8th Cir. 1997).

Regarding the destruction of his home during the 1994 unrest, Malonga points
to his assertions that Lissouba's supporters targeted his home and the homes of other
Pool natives and to a statement in his mother's letter that Lissouba's forces came
looking for him after he left. This evidence not so compelling as to disturb the BIA's
finding. See, e.g., Mohamed, 396 F.3d at 1004 (observing the only evidence that the
petitioner was persecuted on account of clan membership was the petitioner's
testimony, when attack occurred at height of civil war, country reports indicated
endemic banditry, and the petitioner testified that alleged persecutors attacked anyone
in neighborhood thought to have money and valuables); Quomsieh, 479 F.3d at 602;
Tan v. Attn’y Gen., 221 F. App’x 168, 171–72 (3d Cir. 2007) (unpublished)
(petitioner’s unsupported claim that mistreatment was on account of a protected
ground did not compel a conclusion contrary to the IJ’s finding that incidents were

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common crimes); Ombongi v. Gonzales, 417 F.3d 823, 826 (8th Cir. 2005)
(recognizing that some property damage is necessarily collateral to widespread ethnic
conflicts). Rather, we conclude that several factors support the agency's conclusion.
First, only an attenuated temporal connection exists between this event and his most
recent political activities; a minimum of several months passed between his
participation in the 1993 demonstration, the marking of his home for destruction and
the alleged threats, and the actual demolition of his home. Second, Malonga was not
in the country during this period and the letters from family or friends relating the
incident years later do not attribute the attack to Lissouba’s forces specifically or state
that forces singled out his home or those of others like him in terms of politics or
ethnicity. Although, as noted above, his mother states Lissouba's forces were looking
for him at one time, a close read of the record indicates this was after his home had
been destroyed. Third, some of these letters also indicate the district where his home
was located was hard hit in general and Malonga has acknowledged that whole areas
of Brazzaville were destroyed during the unrest. The record contains little other
objective description of the 1994 conflicts, and none that supports Malonga’s claims
as to who destroyed his home and why.

Nor can we clearly connect the disappearances and deaths of Malonga's family
members during the conflicts of the late 1990s to a protected ground. "Acts of
violence against family members on account of a protected basis may demonstrate
persecution if they show a pattern of persecution tied to the petitioner." Vonhm v.
Gonzales, 454 F.3d 825, 828 (8th Cir. 2006) (quotation omitted). Malonga now
asserts that government forces murdered his father on account of a protected ground,
but all the record shows is that his father was shot and died of his injuries. Malonga's
affidavit acknowledges that his father's death occurred during the context of the civil
war in which thousands died, and the record demonstrates all factions in the
1998–1999 conflicts committed serious abuses. No clear evidence otherwise ties this
unfortunate event to ethnicity or to Malonga's political opinion. These facts do not
justify reversing the BIA.

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B. Clear Probability of Future Persecution

The BIA also held that Malonga did not face a clear probability of persecution
on account of his ethnicity or his political opinion if returned to the Congo. It stated
in part:

While there is ongoing conflict in the Congo, the respondent's previous
problems occurred many years ago and there is little evidence that there
is any ongoing interest in the respondent either due to his ethnicity or his
political activities. The respondent has failed to show any particularized
fear or that his group, the Lari, face a pattern and practice of persecution
in the Congo.

Malonga first objects to the BIA's reference to "fear" in its discussion of future
persecution, claiming the BIA conflated the partially subjective analysis for asylum,
see Cubillos v. Holder, 565 F.3d 1054, 1058 (8th Cir. 2009), with the entirely
objective one for withholding of removal, see I.N.S. v. Cardoza-Fonseca, 480 U.S.
421, 430–31 (1987). We review de novo whether the BIA applied an erroneous legal
standard. See Makonnen v. I.N.S., 44 F.3d 1378, 1382 (8th Cir. 1995). Although the
BIA might have been more precise in its articulation of the analysis, we are not
convinced this alone warrants reversal. Looking at the analysis as a whole, we read
the BIA’s statement to mean that Malonga failed to show he will be singled out for
persecution. The BIA recited the "clear probability" standard for withholding of
removal within the same paragraph and nothing else about the analysis suggests that
the BIA actually required Malonga to prove a subjective element to warrant relief.
Even if the BIA had improperly required him to do so, Malonga testified that he did
have such a subjective fear, and no one has questioned his credibility on this point.

Further, the record does not compel the conclusion that Malonga will more
likely than not suffer persecution strictly on account of his ethnicity. None of the
evidence Malonga points to rebuts the BIA's observations that any problems he
experienced because of his ethnicity happened a long time ago and that there is little

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evidence of the government's interest in him on account of that ground. Additionally,
Malonga has not articulated to this court any other reasons he would be singled out
on account of his ethnicity separate from those due to political opinion, which he
acknowledges is the more important of his two claims.

Nor can we say this record compels the conclusion that the Lari as whole face
a pattern and practice of persecution. See 8 C.F.R. § 1208.16(b)(2)(i)-(ii). Malonga
suggests that we must infer that the Lari face a pattern and practice of persecution
because the Kongo, the larger ethnic group to which they belong, constitute the main
ethnic group in the regions where much of the fighting occurred between southern
rebels and the government. To that end, the record clearly shows that civilians in the
southern regions of the Congo experienced significant, widespread abuses during the
unrest of the 1990s and in 2002. What is largely lacking from this record, however,
is evidence of a persecutory motive behind most of these acts. We heed the State
Department's advice against oversimplifying these conflicts and decline to assume
one. Statements in the various reports and articles indicate government-allied forces
targeted some degree of violence at southern ethnic groups. None of these statements,
however, identify the ethnicity of the victims as Lari. More fundamentally, to
establish a pattern and practice "the persecution of the group must be systemic,
pervasive, or organized." Tolego v. Gonzales, 452 F.3d 763, 767 (8th Cir. 2006)
(quotation omitted). The record does not demonstrate that the Lari endured
persecution during the conflicts or otherwise to the extent necessary to meet this high
standard, even in light of specific instances of past mistreatment that Malonga cites.

That said, the BIA's analysis regarding the probability of future persecution
based on political opinion troubles us for two reasons. First, we cannot tell from its
opinion whether it considered Malonga's political activities after he left the Congo.
Second, we think the BIA's pattern and practice analysis as to the Lari fails to account
for the risks Malonga argues he would face as an actual or imputed political dissident.

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 In considering whether Malonga will be singled out for persecution, the BIA
makes no mention of his continued membership in political groups in the Congo or his
involvement with additional expatriate political organizations while residing in the
United States. Although the IJ recognized some of these affiliations, neither the IJ nor
the BIA analyzed the nature or level of Malonga's participation in the various groups
since his departure or if his current activities might put him at risk. Given this, and
reading the BIA's opinion as a whole, we interpret the BIA's observation that "there is
little evidence there is ongoing interest in him" on account of his political activities as
a conclusion based on past events. Further, if Malonga establishes that these activities
have or are likely to draw the attention of persecutors, the BIA's observation that most
of his problems happened years ago is of little consequence. Because we cannot
determine from the agency's analysis whether it recognized and considered these
issues, remand for further consideration is appropriate. See Barrangan-Verduzco, 777
F.2d at 426 (noting agency must sufficiently show it considered issued raised); Myat
Thu v. Att'y Gen., 510 F.3d 405, 413–15 (3d Cir. 2007) (remanding when the IJ failed
to consider material documentary evidence relevant to a well-founded fear due to
petitioner's political activities outside native country); Woldu v. Ashcroft, 209 F.
App’x 380, 381–82 (5th Cir. 2006) (unpublished per curiam) (remanding for
reconsideration of a well-founded fear where the IJ and BIA failed to address relevant
evidence and the IJ relied on past treatment in native country to find no future
persecution). We express no opinion as to whether these post-departure affiliations and
activities warrant relief.

Closely related is our concern that the BIA failed to include political dissidents
in its pattern and practice analysis. The BIA simply held that the Lari did not face such
a pattern and practice. We understand Malonga to argue that this analysis is
insufficient for two reasons. First, it fails to account for the fact that he has been an
actual political dissident, who, he claims, the record demonstrates face a substantial
risk of persecution. Second, he argues that he runs a separate risk of having a political
opinion imputed to him because he is a Lari from the Pool region, whose residents are

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often assumed to oppose the government. Regarding the latter, Malonga points, for
example, to the fact that during the 1998-1999 conflicts, police executed five men
whose identity cards indicated they came from the Pool and were assumed to be
members of the southern-based Ninjas or Cocoyes militias. He also draws our
attention to a 1999 letter from his brother recounting reports that men of "fighting age"
in the Pool were being summarily executed. This evidence tends to show, to some
degree, the persecution of individuals imputed to be political opponents of the
government and its allies. It additionally suggests that individuals like Malonga,
particularly in terms of geographic ties, have been labeled as such and persecuted
accordingly—even if the evidence does not compel the conclusion that the Lari as a
whole face a pattern and practice of persecution.

The Attorney General counters that the BIA concluded Malonga's ethnicity and
political opinion claims were intertwined and so properly considered the Lari as both
the relevant ethnic and political group for purposes of the pattern and practice analysis.
We think collapsing the analysis in this manner was inappropriate given the complex
issues surrounding Malonga's political opinion claim. The pattern and practice analysis
as we see it takes no account of Malonga's actual political activities or his many
political affiliations, not all of which clearly coincide with his ethnicity. We also think
the analysis does not account for the more subtle issue of imputed political opinion. We
remand for further consideration in light of these concerns. See Hailemichael v.
Gonzales, 454 F.3d 878, 884 (8th Cir. 2006) (remanding when the IJ failed to articulate
reasoning sufficient to permit review); Makonnen, 44 F.3d at 1383–84 (remanding in
part because the agency only considered whether the petitioner would suffer
persecution on account of ethnic group, and not political group, where the two were
closely related and it was likely that petitioner would not articulate a clear distinction
between the two); see also Ayele v. Holder, 564 F.3d 862, 868–69 (7th Cir. 2009)
(remanding where the IJ failed to fully consider the petitioner's family group claim, and
if it did, improperly required evidence that the petitioner would be singled out).

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 III.

For the reasons stated above, we grant the petition for review, vacate the BIAs'
holdings regarding a clear probability future persecution on account of political
opinion, and remand for proceedings consistent with this opinion. The BIA should
consider Malonga's current political activities and affiliations would cause him to be
singled out for persecution. It should also consider whether a pattern and practice of
persecution exists as to actual and imputed political dissidents, and whether Malonga
as a Lari from the Pool who has been an active political opponent of several regimes,
is similarly situated to those individuals. On remand, the BIA is free to supplement the
record with more current materials regarding country conditions in the Congo.

COLLOTON, Circuit Judge, dissenting.

The court convincingly explains why the record does not compel a conclusion
that Noel Malonga suffered past persecution on a protected ground, that he faces a
clear probability of future persecution based on his ethnicity, or that there is a pattern
or practice of persecuting members of the Lari social group in the Congo. The court
goes astray, however, when it remands the case to the Board of Immigration Appeals
for a second time based on perceived deficiencies in its opinion.

The BIA must provide an adequate reasoned explanation of its decision, but it
has “no duty to write an exegesis on every contention.” Averianova v. Holder, 592
F.3d 931, 936 (8th Cir. 2010) (internal quotation omitted). Because the BIA rejected
Malonga’s claim for withholding of removal, and described the basis for its decision
“with such clarity as to be understandable,” SEC v. Chenery Corp., 332 U.S. 194, 196
(1947), there is no reason for a remand.

The court concludes that the BIA’s opinion is inadequate for two reasons. The
court first says it cannot determine whether the BIA considered Malonga’s political

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activities after he left the Congo. Ante, at 16. But the BIA stated explicitly that “there
is little evidence that there is any ongoing interest in [Malonga] either due to his
ethnicity or his political activities.” This conclusion is appropriately responsive to
Malonga’s three-sentence contention in his brief to the BIA about political activity
after he left the Congo. (A.R. 191). Malonga argued only that he has continued “his
allegiance and membership” in a political party, that he is a “member” of a political
group of scholars, and that he has signed petitions criticizing the Congolese
government that have been widely circulated in the United States, France, and the
Congo. The BIA’s opinion, fairly read, found little evidence that the government has
any present interest in Malonga due to these political activities. That is a sufficient
decision to permit judicial review, and the record does not compel a contrary
conclusion.

The court’s second reason for a remand is that the BIA’s “pattern or practice
analysis” fails to address persecution that Malonga might face as an “actual or imputed
political dissident.” Ante, at 16. The BIA answered Malonga’s “pattern or practice”
argument by concluding that Malonga had “failed to show . . . that his group, the Lari,
face a pattern of persecution in the Congo.” The BIA viewed this conclusion as
responding to Malonga’s arguments about both his social group and his political
opinion, because Malonga’s testimony did not differentiate between the two, and “it
appear[ed] from the record that [Malonga’s] politics were intertwined with his ethnic
identity.”

The court’s criticism of the BIA – that the agency’s opinion inappropriately
viewed Malonga’s claims based on ethnicity and political opinion as “intertwined,”
ante, at 18 – contradicts Malonga’s own position in this court: “As correctly
acknowledged by the BIA, Malonga characterized his problem in Congo as ethno-
political; ‘it appears that his politics were intertwined with his ethnic identity.’”
(Appellant’s Br. 24 n.2) (quoting In re Malonga, No. A073 063925, at 2 (BIA Apr. 27,
2009)) (emphasis added). The court’s additional complaint that the BIA was required

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to address the “Lari from the Pool region” separately from the “Lari as a whole,” ante,
at 17-18, and to consider whether the government would “impute” a political opinion
to the former group but not to the latter, ignores this court’s prior explanation that
members of the Lari social group are “identifiable . . . by their concentration in
southern Congo’s Pool region.” Malonga v. Mukasey, 546 F.3d 546, 554 (8th Cir.
2008) (emphasis added). The BIA adequately addressed the arguments raised by
Malonga in his administrative appeal, and the record does not compel a contrary
conclusion on the merits.

For these reasons, I would deny the petition for review.
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