By Caroline Daniel

In a published civil opinion released today, the Fourth Circuit remanded an immigration claim back to the Board of Immigration Appeals (“BIA”).  In Ilunga v. Holderthe Court vacated the BIA’s denial of Plaintiff Faustin Mukadi Ilunga’s (“Ilunga”) petition for asylum and ordered new proceedings consistent with the opinion.

Immigration Judge Questions Ilunga’s Credibility

The Immigration Judge (“IJ”) – who originally considered Ilunga’s asylum application and petition for relief under the Convention Against Torture – questioned Ilunga’s credibility based on inconsistencies in his testimony and his demeanor.  The IJ did not consider independent evidence.  The BIA affirmed her decision, and Ilunga appealed to the Fourth Circuit.

Ilunga Sought Asylum in the United States After Facing Politically Motivated Torture in the Democratic Republic of the Congo

Before seeking asylum, Ilunga resided in the Democratic Republic of the Congo with his wife and five children.  Ilunga was a political activist and zealous member of the Movement for the Liberation of the Congo (“MLC”).  From 2003 to 2006, Ilunga worked for the MLC as a paid employee and was highly visible in the party’s opposition of the 2006 election of President Joseph Kabila.  When President Kabila was elected in 2006, local law enforcement and Kabila supporters threatened Ilunga and vandalized his home.  Additionally, the police murdered some of Ilunga’s colleagues from the MLC.

After these experiences, Ilunga wrote a letter to a friend in Zambia expressing his fear for his and his family’s safety.  The letter also accused President Kabila of assassinating his father.  The letter was intercepted by the police, which led to Ilunga’s arrest and torture.  After being blindfolded, taken from his home, and questioned about the contents of the letter, the police told Ilunga that he “would be killed” for writing the letter.  Ilunga was then sent to prison.

In prison, Ilunga suffered extreme torture each day.  He was sexually assaulted, beaten with an electrical club, stabbed, and battery acid was poured in his wounds.  Several months after being imprisoned, Ilunga and his cellmate, Jean Nkongolo Kalala (“Kalala”), escaped to Zambia with the aid of a prison guard.  The two remained in Zambia for a year, during which time Ilunga’s wife and children were tortured in the Congo.  In 2008, Ilunga’s family escaped to Zambia, and Ilunga and Kalala fled to the United States.

Immigration Judge Abused Discretion in Denying Ilunga’s Petition for Asylum

The Fourth Circuit reviewed the decision as a final agency action, and noted that an asylum order must be upheld unless “manifestly contrary to the law and an abuse of discretion.”  8 U.S.C. § 1252(b)(4)(D).  The IJ noted four reasons for deeming Ilunga’s testimony to be incredible: (1) inconsistencies in Ilunga and Kalala’s testimony about where the torture took place; (2) inconsistencies in Ilunga and Kalala’s testimony about their prayer rituals in prison; (3) the dates on Ilunga’s MLC membership card and letter; and (4) Ilunga’s demeanor during his testimony.  The Fourth Circuit explained a basis for remand on each of these issues, and additionally found that the IJ erred in failing to consider “independent documentary evidence to establish asylum eligibility.”

Immigration Judge Failed to Consider Totality of the Circumstances 

The IJ failed to consider the totality of the circumstances in ruling that Ilunga’s testimony was incredible.  The first reason that led the IJ to deem Ilunga incredible were based on inconsistencies between his and his cellmate Kalala’s testimony.  The IJ determined that it was unclear where the torture in prison took place: while Kalala testified that the abuse occurred outside the cell, Ilunga testified that it happened within the cell and then later changed his testimony.  The Fourth Circuit held that the IJ failed to consider “language-based barriers.”  Ilunga’s native language was Tshiluba, but he claimed to speak French fluently.  Two different translators were used in the proceedings, and the transcript consistently indicated confusion on the part of both Ilunga and Kalala.  The Fourth Circuit held that, in considering the language-based confusion, the minor inconsistencies in testimony were insufficient to deem Ilunga’s testimony incredible.

Second, the IJ found inconsistencies in Ilunga and Kalala’s testimony about their daily prayer habits.  The IJ cited that both witnesses were “hesitant and vague.”  The Fourth Circuit noted that there were absolutely no inconsistencies in the testimony, and that the BIA properly only considered their hesitance as demeanor evidence.  Still, however, the Fourth Circuit found that the vagueness in the testimony pointed to confusion as opposed to incredibility.

Third, Ilunga presented documentary evidence in the form of his MLC membership card and a letter detailing his involvement.  The IJ found that this evidence was incredible because it was dated December 24, 2006 – one day after Ilunga was arrested.  While the Fourth Circuit noted that this could be problematic, it also explained that the IJ and BIA should have considered Ilunga’s “reasonable explanation” for the discrepancy.  Ilunga stated that it was common for law enforcement in the Congo to confiscate and destroy MLC membership information upon arresting MLC members.  Given this explanation, the Fourth Circuit held that this inconsistency was insufficient to “sustain an adverse credibility claim.”

Fourth, the IJ considered Ilunga’s demeanor when testifying in finding him incredible.  The IJ noted that Ilunga “appeared uncomfortable” and was “non-responsive at times” throughout the proceeding.  The Fourth Circuit vehemently disagreed with the IJ’s findings that Ilunga’s discomfort discredited him, calling the determination “unsettling.”  The Fourth Circuit noted that Ilunga had been diagnosed with PTSD, and stated that, “the ability to testify in a cool and collected manner about an experience of torture would arguably raise greater credibility concerns.”

Finally, the Fourth Circuit held that the IJ improperly discounted documentary evidence that Ilunga presented and that the documentary evidence should be considered on remand.

Denial of Asylum Vacated and Remanded for Further Proceedings

Based on the reasoning above, the Fourth Circuit remanded the case to the BIA.  It noted that should the BIA remand the case to an IJ for further proceedings, the case should be heard in front of a different judge.

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