Un-Reported BIA Cases about the Democratic Republic of Congo

by David L. Cleveland

The election of Felix Tshisekedi [“Felix”] as the new President of the country in January 2019 is a “change in circumstances,” ruled the BIA in two cases.

In 2019-2020, most asylum/CAT applicants from the DRC were denied relief. That is my conclusion, after reading 170 pages of decisions from the BIA, obtained via a FOIA request. The pages are published on the FOIA page of the Louise Trauma Center website: www.louisetrauma.weebly.org, as “BIA-DRC-2020.”

Here are some interesting excerpts from some of the cases:

BIA decision dated June 11, 2020:

Asylum denied. Applicant was detained and beaten between 2007 and 2017, but in December 2018, a new president, Felix, was elected. This is a “fundamental change in circumstances.” [first paragraph on page 2 of Opinion.] The “record evidence shows that there has been a fundamental change in circumstances in the DRC.” [second paragraph on page 2 of Opinion.]

BIA decision dated December 26, 2019:

Motion to reconsider denied. Felix took office on January 25, 2019. Applicant’s spouse wrote a letter, opining that Felix’s regime was no different from Kabila’s, but there is much evidence to the contrary.

“While the evidence presented confirms that President Tshisekedi has installed supporters of former President Kabila into several government posts, the evidence does not indicate that the current DRC administration is persecuting or torturing opponents of the former Kabila administration.”

“Instead, an article from Reuters indicates that President Tshisekedi has pardoned prominent political prisoners,’a marked shift away from the policies of Kabila.’”

“Similarly, an article from Deutsche Welle News indicates that President Tshisekedi has shown an interest in establishing a functional democracy, liberating political prisoners, and allowing political protests to go ahead.”

BIA decision dated August 15, 2019:

CAT denied. “Although the respondent claims that Kabila still controls the country and is in collusion with the current president, the role of Congolese government officials in future events he fears is based entirely on speculative allegations…”

BIA decision dated September 19, 2019:

Asylum denied. “There is an absence of evidence that under the current DRC president, Felix Tshisekedi, opponents of former president Kabila are persecuted.”

HOWEVER, ONE CASE WAS REMANDED:

BIA decision dated 12-10-19:

The applicant testified credibly that he suffered harm at the hands of Kabila’s security force, during the Presidential campaign in December 2018. However, he did not show nexus, so asylum and withholding of removal were properly denied.

The IJ denied relief under CAT, because the Presidential campaign was over. Held: the IJ did not consider all the evidence; case is remanded, to re-consider CAT.

ASYLUM DENIED DUE TO INCONSISTENCIES BETWEEN COURT TESTIMONY AND ASYLUM OFFICER TESTIMONY

BIA decision dated 2-11-20:

Asylum was denied, in part due to inconsistencies between his in-court testimony and “his testimony before an asylum officer.”

BIA decision dated 9-26-19:

Asylum denied where applicant told the court she had been arrested three times; but told the asylum officer it was two times. Also, she told the court she had been raped, but did not mention that to the asylum officer.

BIA decision dated 9-20-18:

Asylum was denied, in part due to inconsistencies. He told the court he spoke to his girlfriend only rarely; he told the asylum officer she was his wife. [the Lingala interpreter said that mwasi is a word encompassing several meanings, including “wife,” “woman,” and “girlfriend.”]

The applicant complained that the IJ improperly relied upon “internal emails from asylum officers.” [!] But this argument fails.

OTHER INTERESTING DENIALS

BIA decision dated 4-8-20:

IJ and BIA both denied asylum, in part because of inconsistencies between courtroom testimony and statements in his visa application.

In court, he said he only had a temporary residence in Brazil; in the visa application, he said “permanent resident.”

In court, he said he had been arrested; in the visa application, he denied that.

In court, he said he worked for one employer in Brazil; but in the visa application he listed a different employer.

In court, he said he had been a student; but this was not stated in his visa application.

BIA decision dated 3-17-20:

The IJ granted asylum, and found that “non-Tutsi Congolese men in the Goma province” was a cognizable particular social group. We reverse. This group is not immutable.

The word “in” is not the same as “from.” Applicant is not from Goma; he only lived there for a few years; and then he moved to Kinshasa. However, we remand to the IJ to consider his CAT claim.

BIA decision dated 3-15-19:

Motion to re-open denied, even though applicant submitted an opinion letter from a lecturer in International Security at the University of Sussex in the United Kingdom. The letter opined that applicant would be viewed as a “foreigner,” and that bandits would rob him due to his accent.

Applicant argued that he would be targeted because of his status as a “returning refugee from the United States who has been critical of the Congolese government.” But, this is a change in personal conditions, not a change in country conditions.

An uncle wrote a letter, opining that applicant would be targeted for kidnapping and ransom as a returnee from the United States. Such treatment is not “torture.”

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Conclusions of the author

I have met a number of applicants from the DRC, who tell me that: “Kabila is still the boss; Felix is not really the boss.” I tell them that most DRC applicants at the BIA lose. So, they must work hard to convince the IJ.

Mr. Nsimba protested against Kabila and also against Felix in 2018. The regime of Felix then threatened Nsimba. The Third Circuit harshly criticized the government of DRC, without distinguishing between Kabila and Felix, in Nsimba v. Att’y Gen., 2021 WL 6062950, at *2 (3d Cir. Dec. 22, 2021)(“The Country Conditions Report that was introduced discussed how political prisoners in the DRC were routinely abused, tortured, and subjected to violence.&rdquo

To avoid being surprised in court, do a FOIA request to get the asylum officer notes and the asylum officer assessment.


About The Author

David L. Cleveland was the Chair of the AILA Asylum Committee [2004-05] and has secured asylum or withholding for persons from 48 countries. Based in Washington DC, he is available at 1949.david@gmail.com


The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.