Lusingo v. Atty Gen USA

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit

8-19-2005

Lusingo v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 03-4418

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 PRECEDENTIAL

THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 03-4418

FIKIRI LUSINGO,

Petitioner

v.

*ALBERTO GONZALES, Attorney General
of the United States,

Respondent

*(Amended pursuant to F.R.A.P. 43(c))

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

Argued: March 8, 2005

Before: NYGAARD 1 , McKEE and RENDELL, Circuit
Judges
(Opinion filed: August 19, 2005)

1
Judge Richard L. Nygaard, Senior Circuit Judge effective
July 9, 2005.
Stephen J. Spiegelhalter (Argued)
Latham & Watkins
555 11 th Street, N.W.
Suite 1000
Washington, D.C. 20004

Attorney for Petitioner

Christopher C. Fuller
Linda S. Wernery
Douglas E. Ginsburg
John M. McAdams, Jr.
Lyle D. Jentzer, (Argued)
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878
Ben Franklin Station
Washington, D.C. 20044

Attorneys for Respondent

OPINION

McKEE, Circuit Judge

Fikiri Lusingo petitions for review of the decision of the
Board of Immigration Appeals affirming the Immigration
Judge’s denial of asylum. Although the BIA disagreed with the
Immigration Judge’s analysis of much of the evidence Lusingo
presented during his removal hearing, the BIA ultimately

2
affirmed the IJ’s order denying relief. On appeal, Lusingo
argues that the BIA’s ruling denying his asylum claim is
“objectively unreasonable.” 2 For the reasons that follow, we
agree and we will grant the petition for review and remand for
additional proceedings consistent with this opinion.

I. Background.

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

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

2
The BIA also ruled that Lusingo failed to establish that he
was eligible for withholding of removal or relief under the
United Nations Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (the “CAT”), but allowed him
voluntary departure. Lusingo has not petitioned for review of those
rulings and his claim for withholding of removal and relief under the
CAT is therefore not before us.

3
 When Lusingo learned of the extensive news reports of
his disappearance, he became frightened and reported to a police
station in Maryland. The police transferred him to the custody
of the Immigration and Naturalization Service.3 During the
ensuing INS interrogation, Lusingo expressed fear that he would
face persecution if returned home because the extensive media
coverage of his disappearance would no doubt have embarrassed
the government of Tanzania. Lusingo had come to the United
States with hopes of converting his visa into a student visa so
that he could remain here and receive an education. He
therefore had no reason to fear persecution until the media blitz
occurred. The extensive coverage of his disappearance resulted
in the broadcast of a substantial amount of unflattering
information about the Tanzanian government. This included
reports that Lusingo feared his government would retaliate by
imprisoning him upon his return home, and by economic
retaliation against his family. Reports of the possibility of
Lusingo’s likely imprisonment upon his return mentioned that
“it is common for boys to be sexually exploited while in jail in
Tanzania.”

3
On March 1, 2003, the INS ceased to exist as an agency
within the Department of Justice and its functions were
transferred to the Department of Homeland Security. See
Homeland Security Act of 2002, Pub.L. No. 107-296, 110 Stat.
2135 (2002). For the sake of consistency, we will use the term
INS to refer both to the historical INS and to the Department of
Homeland Security to the extent that it is currently fulfilling
duties historically performed by the INS.

4
 Lusingo petitioned for asylum based upon his fear that he
would be persecuted upon his return home because the
Tanzanian government persecutes people who embarrass it. The
testimony Lusingo produced during the ensuing removal hearing
before the Immigration Judge included the declaration of Dr.
Rakesh Rajani. Dr. Rajani’s expertise on human rights in
Tanzania was not disputed. His declaration states in part:

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

Dr. Rajani also described Tanzanian jails and the type of
torture and treatment endured by prisoners. According to his

5
declaration, this includes: co-mingling of adults and children
and the consequent sexual abuse of the children, cells covered
with urine and feces, forced manual labor including carrying
buckets of human excrement; and lack of due process. Dr.
Rajani also explained that, given the unfavorable publicity,
Lusingo could be subject to prolonged imprisonment under such
conditions without actually being charged with any crime. He
recounted an event in 2002 where 120 prisoners were held in a
room designed to hold 30. Many of those prisoners died of
suffocation. Dr. Rajani’s declaration ended with the following
statement:

[Lusingo] is at risk of the aforementioned
conditions and abuse even if he is not ultimately
convicted of a crime. . . . Fikiri would be held as
a remand prisoner, where . . . he would endure
appalling conditions and be vulnerable to sexual
molestation and abuse by adult prisoners or
detainees. Thus, [he] is likely to face abuse
notwithstanding the outcome of his case if he is
forced to return to Tanzania and is prosecuted.4

When asked to describe the attitude of the Tanzanian

4
Dr. Rakjani also offered his eyewitness account of a child
that he saw beaten by police. The child had been given a book
to attend school, but the police mistakenly believed he had
stolen the book, and began beating the child. Dr. Rajani stated
that he tried to intercede on behalf of the boy and was himself
imprisoned.

6
government toward those believed to be disloyal, Dr. Rajani
responded: “the government takes a very dim view of people
who are disloyal. It has very little tolerance from 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

7
Tanzania. He opined that Lusingo had a “legitimate and
reasonable fear of imprisonment if returned to Tanzania, where
he would likely be commingled with 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 anyway.”

In addition, Lusingo testified credibly about his personal
knowledge of police mistreatment of Tanzanian citizens. 5 He
said that he had seen prisoners (including those with handicaps)
being kicked and beaten with batons. He also testified that his
friend was once arrested for “hanging out” on the street. His
friend returned home without ever having been charged with any
offense and told Lusingo of the conditions he had observed in
prison. Lusingo learned that detainees are physically mistreated,
denied food and medicine, and often raped by violent
homosexual prisoners.

Christopher Nugent, Director of the Commission on

5
There was no finding of adverse credibility by the IJ with
respect to Lusingo’s testimony at the removal hearing.
Accordingly, we presume its veracity. Where the alien’s
credibility is not determined by the BIA, “we must proceed as if
[his/her] testimony were credible . . . ”. Kayembe v. Ashcroft,
334 F.3d 231, 325 (3d Cir. 2003). Moreover, nothing on this
record even suggests that Lusingo’s testimony was not credible,
and both the IJ and the BIA found that he had a genuine fear of
returning home.

8
Immigration Policy, Practice and Pro Bono of the American Bar
Association, also testified at Lusingo’s removal hearing. He
explained that, while interviewing Lusingo, he had been “struck
by how fearful [Lusingo] was of returning to Tanzania after all
of the press reports.”

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. JA. 012-013. The
Report also confirmed that the Tanzanian government has little
appetite for dissent. Id. The human rights record was “poor”
and includes arbitrary arrests, torture, beatings, and horrendous
prison conditions. Id.

A. The Immigration Judge’s Decision.6

The IJ found Lusingo’s fear of return “subjectively
genuine.” JA 012. The judge summarized Lusingo’s claim as
follows:

It is essentially [Lusingo’s] contention that once
the Tanzanian government became aware that he
had disappeared from the scouting jamboree in
Virginia and attempted to remain in the United

6
Although we are reviewing the decision of the BIA, not the
Immigration Judge, a review of the IJ’s reasoning is helpful to
our analysis of the BIA’s decision since the BIA partially agreed
with the IJ’s rationale.

9
 States to attend school, it became angry with him
for creating such a “media circus.” Because of
such government embarrassment it will target him
for persecution upon his return based on a
political opinion imputed to him. In this regard,
[Lusingo] avers that his decision to walk away
from the jamboree, an event his government
permitted him to attend, and his determination to
remain in the United States, will be viewed as an
adverse imputed political opinion which the
government has a history of responding to by acts
constituting persecution and/or torture.

J.A. 011.

However, the IJ denied asylum, withholding of removal
and relief under the United Nations Convention Against Torture
based largely upon his interpretation of Dr. Rajani’s testimony.
The IJ explained:

An important aspect of Mr. Rajani’s testimony . .
is that he equated respondent’s situation to the
Tanzanian government’s handling of street
children in the cities. . . . these children are an
embarrassment to the government, which
sometimes files criminal charges against them for
vagrancy, or rounds them up and trucks them off
to a rural area, where they are released out of
sight of the public. . . Of those juveniles who find
themselves locked away in prison awaiting trial,
they are sometimes jailed with violent criminal

10
 predators who rape and otherwise sexually abuse
them. [Lusingo] feared that once returned, [he]
may well find himself immediately detained with
adult prisoners and thus will face all of the
shortcomings of the penal system of Tanzania.

J.A. 013. However, the IJ concluded that the evidence
established that the Tanzanian government had not targeted
children for abuse. Id. He concluded that, although street
children may be harassed, even beaten and jailed “merely [for]
being poor and destitute, . . . this is not per se persecution . . .
nor is it relevant to [Lusingo’s] claim”. Id. The IJ was
“unconvinced that [Lusingo’s] claim [had] any relevant
relationship with the alleged mistreatment of street children in
Tanzania.” Id., JA014.

The IJ noted that he was only able to find one newspaper
article from Tanzania relating to Lusingo’s case, and he
therefore doubted Dr.Rajani’s testimony about the scope of
media coverage of Lusingo’s disappearance in the Tanzanian
and international press. Id. The IJ also expressed skepticism that
Lusingo’s unauthorized presence in the United States under the
circumstances presented “would result in persecution,” whether
or not the Tanzanian government was embarrassed by it. Id., at
15. Finally, the IJ noted Lusingo’s claim of future persecution
was further undermined by the fact that the Tanzanian
government had not retaliated against his parents. Based upon
all of these considerations, the IJ denied relief based upon his
conclusion that Lusingo had not established a well-founded fear
of future persecution.

11
 B. The BIA’s Decision.

Although the BIA ultimately affirmed the IJ’s denial of
relief, it disagreed with several important aspects of the IJ’s
analysis. The Board held that “the Immigration Judge erred in
concluding that there was a lack of evidence relating to the
Tanzanian government’s sensitivity to adverse publicity
generated by [Lusingo’s] departure from the jamboree.” JA 005.
On the contrary, the Board found that Lusingo’s departure
“received extensive media attention, including media coverage
in Tanzania.” Id. Nevertheless, the BIA affirmed the denial of
relief based primarily upon its rejection of Lusingo’s analogy to
his plight and that of street children in Tanzania. JA. O05.

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.” J.A. 005.

The Board also reasoned that the fact that Lusingo’s
parents had neither been arrested nor harmed even though
Lusingo had testified that they knew of his desire to remain in
the United States from the outset, undermined Lusingo’s claim
of a well- founded fear of persecution upon his return home.
J.A. 006. The Board thus denied relief, and this Petition for
Review followed.

12
 II. DISCUSSION

We have jurisdiction to review final orders of the BIA
pursuant to 8 U.S.C. § 1252. We do not review the Immigration
Judge’s rulings unless adopted by the BIA. Kayembe, 334 F.3d
at 234. Because the BIA’s denial of relief was based on a
factual finding, we must affirm it if it is supported by
"substantial evidence." Balasubramanrim, 143 F.3d at 161.
“Substantial evidence is more than a scintilla, and must do more
than create a suspicion of the existence of the fact to be
established. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion...."
N.L.R.B. v. Columbian Enameling & Stamping Co., 306 U.S.
292, 300 (1939) (internal citations omitted).

As noted above, although the BIA affirmed the IJ’s
denial of relief, it rejected several of the IJ’s findings and
adjudicated Lusingo’s appeal based upon its independent
assessment of the record. We therefore review the BIA’s
decision to determine if it is supported by substantial evidence
in the record.

Under the Immigration and Naturalization Act (“INA”),
the Attorney General has discretion to grant asylum to an alien
who qualifies as a “refugee.” See 8 U.S. C. § 1158(b)(1). An
alien qualifies as a “refugee” by establishing either past
persecution or a well-founded fear of future persecution because
of “race, religion, nationality, membership in a particular social
group, or political opinion,” if returned to his/her prior country

13
of residence. Kayembe, 334 F.3d at 234.7

The inquiry into whether an alien has established the
requisite well-founded fear of future persecution is both
subjective and objective. The subjective component is satisfied
by proof that the professed fear is genuine. The objective
component is satisfied by proof that the alien’s subjective fear
is reasonable in light of all of the record evidence. Guo v.
Ashcroft, 386 F.3d 556 (3d Cir. 2004).

Lusingo produced abundant evidence that his fear is
genuine, and the subjective component of his claim is not
disputed. Rather, the dispute focuses on whether that fear is
objectively reasonable. An alien may demonstrate that his/her
belief is objectively reasonable by documentary or expert
evidence about the conditions in a given country. Lukwago v.
Ashcroft, 329 F.3d 157, 177 (3d. Cir. 2003). When documentary
evidence is lacking, an “applicant’s credible, persuasive, and
specific testimony may suffice” to establish an objective fear of
prosecution. Id. citing Gomez v. I.N.S., 947 F.2d 660, 663 (2d
Cir. 1991).

On appeal to the BIA, Lusingo claimed that the IJ applied

7
The IJ reasoned that Lusingo’s claim was based on the fact
that the Tanzanian government would regard him as being
critical of the regime based upon his unfavorable comments and
the adverse publicity they generated. The IJ treated this as a
claim for refugee status based upon an imputed political
opinion, and the BIA did not disagree.

14
the wrong legal standard for asylum because the IJ stated that
Lusingo had to prove that he “would” face persecution.” The
BIA disagreed based upon its conclusion that “the record in its
entirety reflects that [the IJ] understood and applied the proper
standard, . . . [and] considered whether [Lusingo] had
established . . . ‘a reasonable possibility’ of suffering
persecution in Tanzania.” JA005.

However, the BIA determined that the IJ had “erred in
concluding that there was a lack of evidence relating to the
Tanzanian government’s sensitivity to adverse publicity
generated by [Lusingo’s] departure from the jamboree.” Id.
Rather, the BIA agreed with Lusingo that “his departure from
the boy scouts jamboree received extensive media attention,
including media coverage in Tanzania. . . .” Id. Nevertheless,
the BIA agreed that Lusingo’s subjective fear was not
objectively reasonable and that he therefore could not satisfy the
second part of the asylum inquiry.

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 media
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.

15
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 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.”
JA 006. 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.” Id. at. JA006.
Although Lusingo testified that his parents knew of his desire to
remain here to seek an education, there is nothing to suggest that

16
the his parents knew 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, 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.’” 334 F.3d at 238. 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

17
considered.”

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 will 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, 334.
F.3d at 238.

Before concluding, we pause to comment on some of the
arguments the Attorney General makes in its brief as they reflect
a problem which is increasingly common in the growing number
of cases coming before us. The Attorney General argues that
the absence of “even one news report or letter to the editor”
undermines Lusingo’s claims regarding the media coverage in
Tanzania. Appellee’s Br. at 31. This argument is either
disingenuous or embarrassingly naive. Given the allegations on
this record about the Tanzanian government’s reaction to those
who embarrass it, no one can seriously suggest that the absence
of “letters to the editor” on a topic that may embarrass the
regime has any probative value whatsoever. We are therefore
both confounded and somewhat puzzled by the suggestion that
Lusingo should have introduced “letters to the editor” excerpted
from the Tanzanian press to support his claim that his

18
disappearance received publicity in Tanzania.8

In a less astonishing but similarly myopic assertion, the
Attorney General relies upon statements attributed to the
Tanzanian Ambassador to the United States in its attempt to
suggest that Lusingo has nothing to fear. The Attorney General
argues that some of the articles that Dr. Landau introduced
indicated that the “Tanzanian Ambassador was aware that
Lusingo . . . [was] hoping to stay in the United States to further
[his] education, that the Tanzanian government was consulting
with our government about the situation, and that the Tanzanian
government had assured the boys’ families that they were safe.”
Appellee’s Br. At 29. The Attorney General should appreciate
that an ambassador of Tanzania is rather unlikely to make public
pronouncements that his/her government persecutes its citizens
or retaliates against them for unfavorable publicity in the
international press. Thus, it should come as no surprise that the
Tanzanian Ambassador managed a diplomatic response to
inquiries about Lusingo. It is, however, surprising that anyone
would suggest that the ambassador’s response proves anything
other than his diplomatic acumen.

III CONCLUSION

For the reasons set forth above, we will grant the petition

8
Moreover, absence of letters to the editor would be of
questionable probative value even in the context of the free,
open and vigorous press that we enjoy here. It certainly has no
probative value here.

19
for review and remand to the BIA for further proceedings
consistent with this opinion.

20