NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0577n.06
FILED
Nos. 09-3816, 09-3817, 09-3818
Aug 17, 2011
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
HERRY OMARI KIEGEMWE, (No. 09-3816) )
ABRAHAM YUDAS TEMBO, and (No. 09-3817) )
ANTHONY ROMANUS (No. 09-3818) )
LUAMBANO, )
) On Petition for Review of
Petitioners, ) an Order of the Board of
) Immigration Appeals
v. )
)
ERIC H. HOLDER, JR., Attorney )
General, )
)
Respondent. )
______________________________ )
Before: GIBBONS and WHITE, Circuit Judges, and MALONEY,* District Judge.
HELENE N. WHITE, Circuit Judge. Herry Kiegemwe, Abraham Tembo, and Anthony
Luambano (petitioners) petition for review of the decisions of the Board of Immigration Appeals
(BIA) affirming the Immigration Judge’s (IJ’s) denials of asylum. On appeal, petitioners challenge
the determination that they did not establish an objectively reasonable fear of future persecution. We
grant the petitions for review and REMAND to the BIA for additional proceedings consistent with
this opinion.
I
*
The Honorable Paul L. Maloney, Chief Judge of the United States District Court for the
Western District of Michigan, sitting by designation.
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
Petitioners, Tanzanian natives and then-teenage Boy Scouts, arrived in the United States along
with a fourth teenage scout, Fikiri Lusingo, on valid six-month visas to attend the 2001 International
Boy Scout Jamboree in Virginia. The four scouts left the Jamboree before it concluded, were reported
missing and were the subject of extensive international press coverage (including coverage that
referred to them by name and that labeled them as “disloyal” to Tanzania). They turned themselves
in to local police, were incarcerated, and were turned over to federal officials.
The four scouts sought asylum, asserting that they would be subjected to harsh retaliatory
treatment for embarrassing the Tanzanian government if forced to return. Lusingo’s case proceeded
separately in Pennsylvania and was resolved several years before the instant cases. Lusingo appealed
the denial of his application for asylum to the Third Circuit, and the court granted the petition for
review and remanded. Lusingo v. Gonzales, 420 F.3d 193 (3d Cir. 2005). On remand, the BIA
reversed itself, concluding “upon further review of the record” that Lusingo was eligible for asylum
dependent on required security checks.1 An IJ later granted Lusingo asylum.
Petitioners’ three cases proceeded in tandem before an IJ in Detroit, Michigan. The IJ found
petitioners credible and their fear of persecution subjectively reasonable, but concluded that they were
ineligible for asylum because their applications were untimely and, alternatively, because they failed
to demonstrate that their fear of persecution was objectively reasonable. Several of the IJ’s reasons
for so concluding had been expressly rejected by the Third Circuit in Lusingo and had prompted its
remand to the BIA. In the instant cases, the BIA found petitioners’ asylum applications timely but
1
Donald Fikiri Lusingo, A 79 239 847-York (BIA Dec. 8, 2005); A.R. 1164.
2
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Kiegemwe, et al. v. Holder
concluded that substantial evidence supported the IJ’s alternate conclusion that petitioners failed to
demonstrate an objectively reasonable fear of persecution. The BIA’s reasoning mirrored the analysis
explicitly rejected by the Third Circuit in Lusingo. This court consolidated petitioners’ appeals for
purposes of argument.
II - the Lusingo case
Lusingo’s case figures prominently in petitioners’ arguments, and for good reason –
petitioners were in all respects similarly situated to Lusingo and presented the same experts as had
Lusingo. See n.7, infra.
On Lusingo’s appeal of his affirmative application for asylum, the Third Circuit remanded to
the BIA for further explanation of the basis for its decision:
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 [IJ] included the declaration of Dr. Rakesh Rajani. Dr. Rajani’s expertise
on human rights in Tanzania was not disputed. His declaration states in pertinent 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
3
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Kiegemwe, et al. v. Holder
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 notwithstanding the
outcome of his case if he is forced to return to Tanzania and is
prosecuted.
When asked to describe the attitude of the Tanzanian government toward those
believed to be disloyal, Dr. Rajani responded: the government takes a very dim view
of the people who are disloyal. It has very little tolerance for them . . . dissent is seen
as unpatriotic, it is seen as treacherous, and people who are perceived to have been
disloyal to the government are treated very harshly by the government.” He also
declared that Lusingo’s departure from the Boy Scout Jamboree had received “quite
a bit of coverage.” He lived in Tanzania at the time and recalled “vividly that there
was a strong sense in Tanzania that what these young people have done was, was
extremely disloyal and you got a palpable sense the government was angry with their
actions.”
Dr. Rajani opined that it was likely that the Tanzanian government would jail
Lusingo upon his return and that he would be mistreated in much the same manner the
government treats the street children who are also a source of embarrassment. Dr.
Rajani believed that the Tanzanian government was angry, “especially since his
situation is so unusual for generating so much media interest in both countries.” Dr.
Rajani concluded that Lusingo had a “reasonable and legitimate fear of returning to
Tanzania,” because it was likely that he would be “detained, interrogated, and in that
process would be held in prison conditions that would be detrimental to his health and
probably life threatening.” Dr. Rajani’s testimony was not rebutted.
Lusingo also produced a declaration from Loren Landau, Ph.D., a Research
Coordinator of the Witwaterstand’s Forced Migration Studies Program in
Johannesburg, South Africa. Dr. Landau [] had first-hand knowledge of prison
conditions in Tanzania. He opined that Lusingo had a “legitimate and reasonable fear
of imprisonment if returned to Tanzania, where he would likely be commingled with
4
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
adults and would certainly face horrific conditions . . . [because] . . . the government
continues to act with disproportionate force against individuals or groups who oppose
the government or embarrass the government in any way.”
....
Documentary evidence that was admitted corroborated Lusingo’s evidence.
U.S. State Department Country Reports on Human Rights Practices in Tanzania
described that country’s jails as being among the worst in Africa. The Report also
confirmed that the Tanzanian government has little appetite for dissent. The human
rights record was “poor” and includes arbitrary arrests, torture, beatings, and
horrendous prison conditions.
....
The BIA reasoned: “[Lusingo’s] experts do not have a good analogy of [his]
situation, insofar as the mistreatment of street children in Tanzania does not have much
relevance to [his] claim. [Lusingo] comes from a stable family, with both parents
employed, and he attended school until he left Tanzania. While such media attention
may have embarrassed the Tanzanian Government, we do not find that it gives rise to
a well-founded fear of persecution.”
The Board also reasoned that the fact that Lusingo’s parents had neither been
arrested nor harmed even though Lusingo had testified that they know of his desire to
remain in the United States from the outset, undermined Lusingo’s claim of a
wellfounded [sic] fear of persecution upon his return home. The Board thus denied
relief, and this Petition for Review followed.
....
The BIA’s conclusion that Lusingo’s claim was not objectively reasonable was
based primarily upon the analogy to street children that also troubled the IJ. The Board
explained: [“][Lusingo’s] experts do not have a good analogy to [his] situation, insofar
as the mistreatment of street children in Tanzania does not have much relevance to
[Lusingo’s] claim. [He] comes from a stable family, with both parents employed, and
he attended school until he left Tanzania. While such attention may have embarrassed
the Tanzanian Government, we do not find that it gives rise to a well founded fear of
persecution. The record does not establish that the media attention . . . will lead to
[Lusingo’s] persecution.[”]
Id. The BIA’s explanation is puzzling because it totally misses the point of Lusingo’s
analogy. Lusingo did not claim that he was part of the social group of street children,
as the BIA’s analysis suggests, or that he was subject to persecution upon his return
because the Tanzanian government persecutes children. Rather, he merely introduced
evidence of the Tanzanian government’s repressive attitude toward street children
because they are an embarrassment to the Tanzanian government, and because the
government’s retaliation for the embarrassment they cause is relevant to the
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Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
reasonableness of Lusingo’s fear that he will be persecuted upon his return because he
also embarrassed the government. That testimony, if accepted, is certainly supported
by the record, and could establish Lusingo’s claim of an objectively reasonable and
well-founded fear. Thus, we are at a loss to understand the Board’s rejection of it
based upon what it apparently interpreted as a poorly conceived attempt to suggest
Lusingo was a street child.
We are also at a loss to understand the significance the Board attached to the
fact that the Tanzanian government had not retaliated against Lusingo’s parents. The
Board reasoned, “the lack of repercussion to his family tends to suggest that his family
has nothing to fear from the government. We too find the reasonableness of
[Lusingo’s] fear of persecution is reduced insofar as his family continues to reside
unharmed in Tanzania.” However, as the Board clearly notes, Dr. Rajani testified that
Lusingo’s family would only be “treated harshly if the Tanzanian government thought
they were party to [his] unauthorized stay in the United States.” Although Lusingo
testified that his parents knew of his desire to remain here to seek an education, there
is nothing to suggest that [] his parents knew that he planned to leave the jamboree and
stay in the United States when he left Tanzania, or that the media reports suggested
they knew, or that the Tanzanian government suspected their complicity. Accordingly,
Dr. Rajani’s testimony does not suggest that the government’s failure to retaliate
against Lusingo’s parents should undermine the objective reasonableness of Lusingo’s
fear of retaliation absent further explanation for reaching that conclusion.
There is no dispute that Lusingo’s fear of return is genuine. In addition, the
BIA accepted the evidence of the repressive and retaliatory nature of the Tanzanian
regime as well as the fact that reports of Lusingo’s departure from the jamboree
reached Tanzania and caused the government embarrassment. Moreover, as noted
above, the BIA accepted the IJ’s analysis of Lusingo’s asylum claim as being based on
imputed political opinion criticizing the government. Accordingly, it is difficult for us
to determine on this record why Lusingo is not entitled to the asylum he is seeking.
In similar situations, we have granted petitions for review, and remanded the
matter for additional explanation of the rationale for denying relief. In Kayembe [v.
Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003)], we granted the petition for review and
remanded to the BIA because “‘the BIA’s decision [provided] us with no way to
conduct our (albeit limited) review.’” Similarly, in Dia v. Ashcroft, 353 F.3d 228, 251
(3d Cir. 2003) (en banc), we could not understand the IJ’s rationale for denying relief.
We stated: “we cannot affirm the IJ’s findings and conclusions on the record presented
to us, as the reasons she does provide in support of her decision do not logically flow
from the facts she considered.”
6
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
Given the BIA’s misinterpretation of Lusingo’s evidence about street children,
and the unwarranted weight attached to the fact that his parents were not persecuted
when the Tanzanian government learned of the unfavorable reports of his departure
from the jamboree, the reasons the BIA gave in support of its decision do not logically
flow from the facts it considered here either. Accordingly, we remand to the BIA for
further explanation of the basis for its decision. “When deficiencies in the BIA’s
decision make it impossible for us to meaningfully review its decision, we must vacate
that decision and remand so that the BIA can further explain its reasoning.” Kayembe
[v. Ashcroft], 334 F.3d [231,] 238 [3d Cir. 2003].
Lusingo, 420 F.3d at 195-201 (internal citations to record omitted, emphasis in original).
On remand from the Third Circuit, the BIA reversed itself in an unpublished order per curiam:
[U]pon further review of the record, we find the respondent eligible for asylum,
dependent upon the required security checks, and the record does not reflect that a
denial of asylum in the exercise of discretion is warranted in this case. See generally
Matter of Kasinga, 21 I&N Dec. 357 (BIA 1996). Accordingly, the decision of the
Board in this case dated October 27, 2003, is vacated and the record is remanded to the
Immigration Judge for the required security checks . . . .
[Donald Fikiri Lusingo, A 79 239 847-York (BIA Dec. 8, 2005); A.R. 1164.] Subsequently, an IJ
granted Lusingo asylum.
III - Petitioners’ appeals to the BIA
In three substantially identical2 opinions, the BIA determined that the instant petitions were
timely, but that substantial evidence supported the IJ’s conclusion that petitioners are ineligible for
asylum because they failed to establish an objective fear of persecution. Finding the IJ’s reasoning
more persuasive than the Third Circuit’s reasoning in Lusingo, the BIA agreed with the IJ that: 1) “the
Tanzanian government’s poor treatment of street children or of student demonstrators provides little
2
Differences in the BIA’s three decisions are found at 2, n. 2; 3 (last paragraph); 4 (1st full
paragraph). Luambano J.A. at 7-11/ A.R. 3-7; Tembo J.A. at 7-11; A.R. 3-7.
7
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
insight into how the government might treat the respondent[s] if he should return to Tanzania years
after having been in the news for leaving a boy- scout jamboree in the United States and seeking
asylum,” and 2) “the ability of the respondent[s’] famil[ies] to continue to live in Tanzania without
adverse action by the government greatly diminishes the likelihood that [they] will face harm if he
should return.” The BIA also concluded, as had the IJ, that respondents’ claim “that the Tanzanian
government may persecute [them] for embarrassing the government is not supported by the State
Department’s Country Reports on Human Rights Practices for 2007.”3
The BIA decision proceeded as follows:
The respondent disputes the [IJ’s] determination that he did not establish the
objective component of his asylum claim, i.e., that a reasonable person in his
circumstances would fear persecution on account of a protected ground if returned to
Tanzania. The respondent cites to a Third Circuit decision in the case of a fellow boy
scout who had left the jamboree with the respondent and who also applied for asylum
based on a fear of retaliation from the Tanzanian government. See Lusingo v.
Gonzales, 420 F.3d 193 (3d Cir. 2005). In Lusingo, the . . . Third Circuit found that
the Board erred in dismissing the respondent’s, and his experts’, analogy to street
children who are repressed due to the embarrassment they cause the Tanzanian
government and also erred in attaching significance to the fact that the Tanzanian
government had not retaliated against Lusingo’s parents. As a result, the court found
that the Board’s conclusion that Lusingo did not have an objectively reasonable fear
of persecution was not supported by substantial evidence, and the court remanded to
the Board. The Board issued a decision on December 8, 2005, stating that pursuant to
the Third Circuit’s decision, and upon further review of the record, we found Lusingo
eligible for asylum and remanded the record for the completion of a background check.
The respondent cannot succeed by relying on precedent from a jurisdiction
outside that of the . . . Sixth Circuit or by relying on an unpublished Board decision,
particularly one which was issued pursuant to a remand by a court in another
jurisdiction. See Matter of Anselmo, 20 I&N Dec. 25, 31 (1989) (stating that “[w]here
we disagree with a court’s position on a given issue, we decline to follow it outside the
3
BIA decision of June 2, 2009; J.A. 8, 9, 10.
8
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Kiegemwe, et al. v. Holder
court’s circuit”); Matter of Zangwill, 18 I&N Dec. 22 (BIA 1982) (finding that an
unpublished Board decision is not binding in other cases). Moreover, we agree, with
the [IJ], for the reasons stated in her decision, that the respondent has not met his
burden of establishing the objective component of his asylum claim. In this regard, we
find the [IJ’s] reasoning in determining that the circumstances of student demonstrators
and street children in Tanzania are entirely distinct from the respondent’s
circumstances such that they are not particularly useful in determining how the
Tanzanian government might treat the respondent upon his return to be more
persuasive than the Third Circuit’s analysis of this issue.
The Third Circuit in Lusingo found that the Board had “misinterpreted”
Lusingo’s evidence about street children because Lusingo “merely introduced evidence
of the Tanzanian government’s repressive attitude toward street children because they
are an embarrassment to the Tanzanian government, and because the government’s
retaliation for the embarrassment they cause is relevant to the reasonableness of
Lusingo’s fear that he will be persecuted upon his return because he also embarrassed
the government.” Lusingo v. Gonzales, supra, at 200. However, we agree with the [IJ]
that the Tanzanian government’s poor treatment of street children or of student
demonstrators provides little insight into how the government might treat the
respondent if he should return to Tanzania years after having been in the news for
leaving a boy scout jamboree in the United States and seeking asylum. As pointed out
by the [IJ], the vague category of “individuals who have embarrassed the government”
is so broad and can cover so many different behaviors and circumstances that the
government’s treatment of one individual or group of individuals who engage in
behavior which may be viewed as embarrassing to the government is not necessarily
instructive as to how others who “embarrass” the government in another manner may
be treated.
Additionally, we are not convinced that the government’s methods of trying to
clear the cities of street children, who expert Dr. Rakesh Rajani acknowledged harass
motorists stopped at red lights, beg for money, and sleep in the streets, by detaining
them without charge or forcibly relocating them are motivated solely or even
principally by the government’s desire to “retaliate” against individuals whom it
considers an embarrassment, rather than a desire to maintain order, control crime, and
prevent harassment of other city residents. The record does not indicate that the
Tanzanian government arrests or detains former street children, or former student
demonstrators, in retaliation for having embarrassed the government in the past.
Finally, street children are a particularly vulnerable group in view of their age and their
general lack of family ties or connections with anyone who could advocate on their
behalf. [Discussion of respondents’ immediate family members living in Tanzania,
their parents’ employment, and siblings attending school there.]
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Kiegemwe, et al. v. Holder
Additionally, we agree with the [IJ] that the ability of the respondent’s family
to continue to live in Tanzania without adverse action by the government greatly
diminishes the likelihood that he will face harm if he should return. See Matter of A-
E-M, 21 I&N Dec. 1157 (1998) (reasonableness of alien’s fear of persecution is
reduced when his family remains in his native country unharmed for a long period of
time after his departure). The respondent acknowledged that his father paid the
scoutmaster to allow him to stay in the United States so that he could pursue
educational opportunities in this country. [Discussion of individual respondents’ family
members not having had serious problems with the government.]
Like the [IJ], we find it “difficult to believe that the government of Tanzania
would fail to reach the common sense conclusion that the parents of the 15-17 year old
Boy Scouts may have had some input in their decision to remain in the United States”.
This is especially true where a news report cites a Tanzania Scouts Association official
acknowledging that the decision not to return may have been “made in conjunction
with the parents,” and more recent news reports indicate that in the years following the
respondent’s departure from the Jamboree, a large number of Tanzanian scouts have
failed to return to Tanzania after attending international scouting events. Indeed, recent
reports implicate the same scoutmaster (identified as a TSA commissioner) who had
arranged for the respondent’s travel in a scheme involving the sale of invitations to
international scouting events to families of youths who are willing to pay for the
opportunity to have their children leave Tanzania and then remain outside their country
once the event is over. The record contains no evidence that any TSA officials, parents
of scouts, or scouts themselves have been subjected to persecution as a result of having
participated in this arrangement. We find implausible, and not supported by evidence,
the notion that the Tanzanian government may persecute the scouts who, as children,
remained in the United States pursuant to an arrangement made by their parents and a
scoutmaster while not seeking any repercussions at all against the adults responsible
for the arrangement.
Additionally, we agree with the [IJ] that the respondent’s claim that the
Tanzanian government may persecute him for embarrassing the government is not
supported by the State Department’s Country Reports on Human Rights Practices for
2007 (hereinafter Country Reports). The Country Reports indicate that there were no
politically motivated killings by the government or its agents, no reports of political
prisoners or detainees, and no reports of politically motivated disappearances. Political
opponents are allowed unrestricted access to the media, and “there were numerous
instances of strong criticism of national leaders in the press”.
We agree with the [IJ] that the respondent did not meet his burden of
establishing that a reasonable person in his position would fear persecution on account
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Kiegemwe, et al. v. Holder
of his race, religion, nationality, membership in a particular social group, or political
opinion if returned to Tanzania. Therefore, he has not established the basis for an
asylum claim . . . . Accordingly, the appeal will be dismissed.
[BIA decision June 2, 2009 at 2-5; J.A. at 8-11 (internal citations to record omitted).]
IV
Where the BIA reviews the immigration judge’s decision and issues a separate
opinion, rather than summarily affirming the immigration judge’s decision, we review
the BIA’s decision as the final agency determination. To the extent the BIA adopted
the immigration judge’s reasoning, however, this Court also reviews the immigration
judge’s decision. Questions of law are reviewed de novo, but substantial deference is
given to the BIA’s interpretation of the INA and accompanying regulations. The BIA’s
interpretation of the statute and regulations will be upheld unless the interpretation is
arbitrary, capricious, or manifestly contrary to the statute.
This Court reviews both the immigration judge’s and the BIA’s factual findings
under the substantial-evidence standard. We cannot reverse such findings simply
because we would have decided them differently. These findings are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.
Khalili v. Holder, 557 F.3d 429, 435 (6th Cir. 2009) (internal citations and quotations omitted).
The Attorney General has discretion to grant asylum to a person who qualifies as a “refugee”
within the meaning of section 1101(a)(42)(A) of the Immigration and Nationality Act (INA). Abay
v. Ashcroft, 368 F.3d 634, 636 (6th Cir. 2004) (citing 8 U.S.C. § 1158(b)(1)). The INA defines a
refugee as
any person who is outside any country of such person’s nationality . . . and who is
unable or unwilling to return to, and is unable or unwilling to avail himself . . . of the
protection of, that country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular group,
or political opinion . . . . ”
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INA § 1102(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the burden of
establishing that he qualifies as a refugee either because he has suffered past persecution or he has
a well-founded fear of future persecution. Abay, 368 F.3d at 636-37.
Petitioners in the instant case asserted only future persecution, which requires an applicant to
establish that:
(1) he [] “has a fear of persecution in his [] country of nationality . . . on account of []
membership in a particular social group, or political opinion;” (2) “There is a
reasonable possibility of suffering such persecution if he [] were to return to that
country;” and (3) “He [] is unable or unwilling to return to, or avail himself [] of the
protection of, that country because of such fear.”
Gilaj v. Gonzales, 408 F.3d 275, 283 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.13(b)(2)(i)) (emphasis
added). “A well-founded fear of persecution does not require the applicant to show that he probably
will be persecuted if he is deported; ‘one can certainly have a well-founded fear of an event happening
when there is less than a 50% chance of the occurrence taking place.’” Perkovic v. INS, 33 F.3d 615,
629 (6th Cir. 1994) (quoting INS v. Cardoza-Fonseca, 480 U.S. 421, 431 (1987)).
A
Petitioners argue that the prior BIA and Third Circuit holdings in Lusingo under substantively
identical facts are correct and should be followed here, in keeping with the BIA’s own policy of
treating similarly-situated aliens similarly. We agree.
We note that petitioners acknowledged below that the Third Circuit’s Lusingo decision is not
binding in this Circuit.4 Nor is the BIA’s unpublished order in Lusingo following remand from the
Third Circuit binding here; the BIA is bound only by prior BIA decisions deemed precedential, i.e.,
published. See 8 C.F.R. § 1003.1(g), (i). Nonetheless, we agree with petitioners that the BIA’s denial
4
Closing Arguments for November 1, 2006 Asylum Hearings at 18; A.R. 1768.
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of their asylum applications in the face of its grant of Lusingo’s application violated the fundamental
legal principle – and the BIA’s own policy5 – that similarly-situated individuals should be treated
similarly. Both the IJ and BIA acknowledged that petitioners’ cases were “almost factually identical”
to Lusingo’s. Courts have noted that “administrative agencies must apply the same basic rules to all
similarly situated supplicants,” Henry v. I.N.S., 74 F.3d 1, 6 (1st Cir. 1996), and “[t]he INS must give
each asylum case individualized scrutiny, but it is a foundation of the rule of law that similarly
situated individuals be treated similarly . . . .”). Njuguna v. Ashcroft, 374 F.3d 765, 771 n.4 (9th Cir.
2004), see also Zhang v. Gonzales, 452 F.3d 167, 173 (2d Cir. 2006) (“[I]t is a fundamental principle
of justice that ‘similarly situated individuals be treated similarly.”) (citing Njuguna, 374 F.3d at 771
n.4).
In any event, as discussed below, we conclude that the determination that petitioners were
ineligible for asylum was not supported by reasonable, substantial, and probative evidence on the
record considered as a whole. See Mikahilevitch v. I.N.S., 146 F.3d 384, 388 (6th Cir. 1998).
B
Petitioners argue that after concluding that they had a subjectively-genuine fear of persecution,
the BIA erred in denying their asylum claims as objectively unreasonable by supplanting expert and
fact witness testimony with its own non-expert opinion based on an alleged absence of persecution
of persons not similarly situated with petitioners. Again, we agree.
The BIA noted in this regard:
5
See e.g., In re L-G-, 21 I. & N. Dec. 89, 101 (BIA 1995), criticized on other grounds in cases
including Casarez-Gutierrez v. Ashcroft, 356 F.3d 1015 (9th Cir. 2004).
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The record does not indicate that the Tanzanian government arrests or detains former
street children, or former student demonstrators, in retaliation for having embarrassed
the government in the past,” and “[t]he record contains no evidence that any TSA
officials, parents of scouts, or scouts themselves have been subjected to persecution
. . . We find implausible, and not supported by the evidence, the notion that the
Tanzanian government may persecute the scouts who, as children, remained in the
United States pursuant to an arrangement made by their parents and a scoutmaster
while not seeking any repercussions at all against the adults responsible for the
arrangement.[6]
Given that petitioners’ experts Rajani and Landau were found credible and their declaration
and affidavit, which were essentially the same as they provided in Lusingo,7 were uncontroverted, we
find the BIA’s reasoning difficult to comprehend. The IJ and BIA substituted speculation for expert
testimony in finding that the Tanzanian government’s poor treatment of street children and student
demonstrators is “largely irrelevant” (IJ at 16; J.A. 105) and “provides little insight” (BIA at 3; J.A.
9) into how the government would treat the three petitioners, as well as in finding that it would be
“implausible and not supported by evidence” for the Tanzanian government to persecute petitioners
while not persecuting TSA officials, parents of the scouts, or scouts themselves. No evidence was
presented of any boy scout returning home to Tanzania in circumstances like petitioners’. As to TSA
officials, the scouts presented expert evidence that the TSA and Tanzanian government are
intertwined. Even if it were the case that the government did not persecute TSA officials, that is of
little relevance to the question whether the government would persecute three of the four scouts
6
J.A. 10.
7
See Rajani Declaration, A.R. 1646-54; Landau affidavit, A.R. 1384-86. Petitioners also
presented a declaration of Richard Shilamba, a lawyer in Tanzania familiar with the human rights
situation and refugee issues in Tanzania, J.A. 376-78.
14
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
whose names were published in the press as seeking asylum in the United States, and who, according
to Dr. Rajani, “commanded media attention” in Tanzania like no other individual case of recent
memory and were referred to as traitors in the press. Finally, that petitioners’ parents had apparently
not been persecuted by the government after petitioners sought asylum is of little weight because the
parents were not similarly situated or subject to risk similar to petitioners. Yang Lin v. Holder, 320
F. App’x 428, 435 n.5 (6th Cir. 2009) (“ongoing safety of family member in petitioner’s country of
origin undermines an application for asylum when family members are ‘similarly situated’ and are
‘subject to similar risk’”) citing Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000)). Put another way, “the
fact that family members continue to reside unharmed in the home country may carry little evidentiary
weight if they do not share the trait that made the petitioner a target of persecution.” See Sok v.
Mukasey, 526 F.3d 48, 57 (1st Cir. 2008). There was no evidence that any of petitioners’ family
members living in Tanzania spoke against or in any way embarrassed the Tanzanian government, or
expressed a negative political opinion, much less left the country and sought asylum elsewhere.
The IJ and BIA also found that the State Department’s 2007 Country Reports on Human
Rights Practices in Tanzania did not support petitioners’ claim. As noted by the IJ/BIA, the report
states that there were no politically-motivated killings or reports of politically-motivated
disappearances, that political opponents are allowed unrestricted access to the media, and that there
were numerous instances of strong criticism of national leaders in the press.
However, the 2007 Report also states that “on several occasions security forces used lethal
force against citizens, including persons in custody,” “Police and prison guards used excessive force
against inmates or suspects, at times, resulting in death,” and that prison conditions “remained harsh
15
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
and life threatening. Diseases were common and resulted in numerous deaths in prisons . . . the
leading causes . . . were malaria, tuberculosis, HIV/AIDS, cholera, and diseases related to poor
sanitation.” Further, the report noted, “the government acknowledged severe problems of
overcrowding, lengthy pretrial detention of prisoners, and holding juveniles together with adult
prisoners.” The report recognized that “The constitution prohibits arbitrary arrest and detention;
however, both were problems.” Regarding freedom of speech and the press, the report noted that
government restrictions on freedom of speech “have eased” under the Kikwete administration.
Finally, the report stated regarding government corruption and transparency, “Despite improvements
in the past decade, corruption remained a pervasive problem throughout the government . . . . There
was little accountability in most government entities.” A.R. 680-702.
The BIA relied on a select few portions of the Country Report in finding that the Report did
not support petitioners’ asylum applications. The Report as a whole does not undermine petitioners’
claim of future persecution. The 2007 Report does indicate that there were improvements in certain
areas since the early 2000s;8 however, when read as a whole, these few incremental advances do not
suggest that persons who embarrass the Tanzanian government in the international press would be
less harshly treated than petitioners’ experts attested.
8
See 2001 Country Report, Pet’rs Suppl. App. at 1301.
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Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
C
Finally, we consider the Government’s claim that the administrative decisions are supported
by substantial evidence because petitioners admitted they failed to produce evidence supporting an
objective basis for their fear of persecution.
At the November 2006 removal proceedings, petitioners were asked whether they had
documentary evidence to corroborate that, despite the passage of more than five years since they left
the Jamboree, they would be persecuted if returned to Tanzania. The scouts testified that nothing had
changed in Tanzania and that persons who were deported or returned to Tanzania were jailed.
Although the scouts provided no additional documentary evidence,9 their experts’ affidavits and
declarations corroborated that their fear of future persecution was objectively reasonable. Petitioners’
experts’ affidavits and declarations strongly supported that there is a high likelihood that petitioners
would be persecuted if returned to Tanzania. The Government presented no contrary expert evidence,
and its claim that petitioners failed to produce evidence supporting that they objectively feared
persecution fails.
V
We conclude that the determinations that petitioners were ineligible for asylum and presented
insufficient corroborative evidence are unsupported by reasonable, substantial, and probative evidence
on the record considered as a whole. See Mikhailevitch, 146 F.3d at 388. Accordingly, we remand
to the BIA for further proceedings consistent with this opinion.
9
See 11/1/06 Hrg - A.R. 654-56 (Kiegemwe); 535-36, 545-48, 552 (Tembo); 581-82, 596-97,
600-601 (Luambano).
17
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
Julia Smith Gibbons, Circuit Judge, concurring. I fully concur with the conclusions of the
majority opinion but write separately to emphasize a couple of points that are particularly important
to my reasoning.
First, the record in these cases consists only of evidence presented by Kiegemwe, Luambano,
and Tembo. Thus, when the BIA and the IJ concluded that the appellants had not established that a
reasonable person in their circumstances would fear persecution if returned to Tanzania, they did not
do so based on evidence contrary to that presented by appellants. And appellants without question
presented evidence that supported the objective component of their asylum claims. Given this record,
examination of the reasoning utilized by the BIA in rejecting the claims is critical to ascertaining
whether the BIA’s findings are supported by substantial evidence and whether any reasonable
adjudicator would be compelled to conclude to the contrary.
The BIA’s analysis largely consisted of rejecting an analogy made by appellants’ expert and
embracing an analogy of its own. Initially, the BIA found inapt the petitioners’ analogy to street
children of Tanzania who suffer government retaliation for causing embarrassment. The BIA,
however, was careful not to “misinterpret” the analogy to street children as the Third Circuit
determined it had in Lusingo’s case. Rather than rejecting the analogy because petitioners were not
street children, as it had done previously, the BIA rejected the analogy to “individuals who have
embarrassed the government” as too broad to be persuasive. Then, the BIA found apt an analogy to
the petitioners’ parents who had suffered no consequence from the petitioners’ actions. The Third
Circuit specifically concluded that lack of consequence to the parents was insignificant in Lusingo’s
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Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
case. But the BIA failed to comprehend what the Third Circuit recognized—that petitioners’ parents
were in a very distinct position from petitioners.
Despite its discussion of the analogies to street children and to petitioners’ parents, the BIA
rejected the most instructive analogy available—Lusingo. This is not to say that the BIA was required
to follow the Third Circuit’s precedent. See Mirditaj v. Ashcroft, 116 F. App’x 733, 735 (6th Cir.
2004) (“While ‘[t]he BIA is required to follow court of appeals precedent within the geographical
confines of the relevant circuit,’ the precedent of the [outside circuit] is not binding on the BIA in a
case originating within the Sixth Circuit.”); see also De la Rosa v. U.S. Att’y Gen., 579 F.3d 1327,
1336 (11th Cir. 2009) (“[R]eliance on unpublished BIA decisions is misplaced as the BIA accords
no precedential value to its unreported decisions.” (citing Matter of Zangwill, 18 I. & N. Dec. 22, 27
(BIA 1981))). Still, given its analytic approach, the BIA’s failure to deal with the identical
circumstances of Lusingo and the appellants before us now is puzzling.
Like the Third Circuit in Lusingo, we find the BIA’s reasoning unsound—so unsound that it
cannot be said to be based on substantial evidence. Indeed, all the evidence points to a conclusion
that appellants did establish the objective component of their asylum claims, and the BIA’s reasoning
fails to justify its rejection of the evidence. Under these circumstances, any reasonable adjudicator
would be compelled to agree that appellants had supported their claim.
Second, the BIA’s failure to explain its differential treatment of Lusingo and the appellants
before us is troubling. The BIA has recognized the principle that similarly situated applicants for
asylum are to be treated similarly, see Perkovic v. I.N.S., 33 F.3d 615, 621 (6th Cir. 1994), but in this
case nearly identical applicants received opposite results. In 2005, after the Third Circuit’s reversal
19
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
of the original BIA decision, Fikiri Lusingo was granted asylum. The only material distinction
between the petitioners today and Lusingo then is the passage of time. Indeed, the arguments brought
before the Third Circuit hardly differ from those before our court. Surely, responsible consideration
of these claims would have required the articulation of some basis for differentiation other than a
reminder that the BIA was not required to follow the Third Circuit. One would hope that in the future
the BIA might seek consistency of result in keeping with fundamental fairness.
20
Nos. 09-3816, 09-3817, 09-3818
Kiegemwe, et al. v. Holder
Paul L. Maloney, District Judge, concurring. I fully concur with Judge White’s opinion.
I write separately to join Judge Gibbons’ poignant observations concerning the Department of
Justice’s litigation stance in the instant cases.
Mr. Lusingo was granted asylum by the BIA nearly six years ago. Surely, the mere
happenstance that appellants remained in Michigan and Lusingo moved to the Commonwealth of
Pennsylvania ought make no difference on a matter as grave as nearly identical asylum petitions.
Perkovic v. I.N.S., 33 F3d 615, 621 (6th Cir. 1994). Recognizing that these decisions are solely
reserved to the sound exercise of discretion of the Executive Branch, so it is.
21