349 F.

3d 123

Beatrice MULANGA, Petitioner

v.
John ASHCROFT, Attorney General of the United States of
America, Respondent.
No. 02-3332.

United States Court of Appeals, Third Circuit.

Argued: July 21, 2003.
Filed November 14, 2003.

COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL

OMITTED Thomas W. Vanasse (Argued), New York Association for
New Americans, for Petitioner.
Robert D. McCallum, Jr., Assistant Attorney General, Civil Division,
Ernesto H. Molina, Jr., Anthony C. Payne (Argued), Trial Attorney,
Office of Immigration Litigation, Civil Division, United States
Department of Justice, Washington, for Respondent.
Nadine K. Wettstein, American Immigration Law Foundation,
Washington, for Amicus-Appellant.
Before: ALITO and FUENTES, Circuit Judges and SURRICK,* District
Judge.
OPINION OF THE COURT
FUENTES, Circuit Judge.

Beatrice Mulanga, a citizen of the Democratic Republic of the Congo, petitions

for review of the Board of Immigration Appeals' ("BIA") order dismissing her
appeal from the Immigration Judge's ("IJ") denial of her application for asylum
and withholding of removal. Mulanga argues that the IJ erred by unreasonably
requiring her to provide evidence corroborating her husband's political
affiliation and by discrediting two aspects of her account of persecution. She
also asserts that the BIA violated her due process rights and INS regulations by

summarily affirming the IJ's decision.1 The government counters that the IJ's
decision is supported by substantial evidence and that the BIA properly
affirmed without opinion the IJ's determination that Mulanga failed to satisfy
her burden of establishing eligibility for asylum and withholding of removal.
We conclude that: (1) petitioner should have been given an opportunity to
provide corroborating documentation of her husband's political affiliation or, if
she could not produce such evidence, an opportunity to explain her inability to
do so; and (2) the decision is not supported by substantial evidence. We
therefore grant the petition for review.
I. Factual and Procedural Background
A. Factual Background
2

Except as otherwise noted, the following account is based on two sources. First,
the events relating specifically to Mulanga and her family are based on
Mulanga's testimony (the credibility of which is disputed). Second, information
about political events and conditions in the Democratic Republic of Congo
(DRC) is taken from the U.S. State Department Reports which she introduced
into evidence. Mrs. Mulanga was born on June 4, 1959, in Zaire, now called the
Democratic Republic of the Congo ("DRC"). In 1978, she married Celestin
Kabamba, a high school teacher. Their seven children were born in Kinshasa
between August 1978, and January 1992. Mrs. Mulanga's husband was a
member of the opposition party, the Union for Democracy and Social Progress
("UDPS"). According to Mrs. Mulanga, the UDPS fought the dictatorship in
order to establish a democracy. She testified that her husband worked "for the
young of the party, trying to get them together. He was the local person ... His
primary function was to work with the young people and to help them how to
function within the party. And then, to help them not to be afraid what's going
around." A.R. at 154. Her own involvement with the UDPS consisted of taking
part in the group's protest rallies. Also, she often cooked for the party members.

On April 4, 1995, security agents of the government of Mobutu Sese Seiko2

arrested her husband because of his political beliefs. Mrs. Mulanga testified that
he was detained in a "house of the government" for two days and beaten badly,
which left "his face puffed and a lot of scars on his arms." Id. at 155-56. He
was released when representatives from the UDPS pleaded with the
government to release him.

In June 1995, Mrs. Mulanga participated in a protest march organized by UDPS

in Kinshasa, the purpose of which was "to fight the dictatorship" and "the
restoration of democracy." Id. at 157. One of Mobutu's soldiers who was trying

to keep the march from taking place shot Mulanga in the chest. She fell
unconscious and was taken to the Clinic Ngaliema, where she stayed for three
and a half weeks. Mrs. Mulanga supplied a medical certificate from Dr.
Okenge, who treated her at the Clinic shortly after the shooting. An INS
medical report confirms that Mrs. Mulanga was shot, noting that she sustained
a second degree gunshot wound.
5

In 1997, a political change occurred. Laurent-Desire Kabila forcibly took over

Zaire, thereby ending the regime of Mobutu. He renamed the country the
Democratic Republic of the Congo. See id. at 333. He ruled by decree, without
the constraint of a constitution, and formed "People's Power Committees" to
monitor activities of citizens at their neighborhoods, schools, and workplaces.
Id. According to the 2000 State Department Report, his government was
responsible for human rights abuses, including "extrajudicial killings,
disappearances, torture, beating, rape and other abuses." Id. at 334. Also, the
judiciary was corrupt and it permitted arbitrary arrests and detentions to
become common. See id. at 333, 341. "Security forces ... used arbitrary arrest to
intimidate outspoken opponents and journalists. Charges rarely were filed, and
the political motivation for such detentions was obscure... [d]etention without
charge [was] a frequent problem under the Kabila administration... [t]here were
many secret or unofficial detention centers in Kinshasa...." Id. at 341.

After Laurent Kabila came to power in 1997, petitioner and her husband
continued to have problems because of their political beliefs. During 1998,
security forces would often come to their home "to arrest [Mr. Mulanga]
because of his political beliefs" and "to get him to get out of the political
scene." Id. at 159. Mrs. Mulanga testified that the Laurent Kabila government
was "looking for him because of his politics, and he was anti-government." Id.
at 183. Mr. Mulanga often fled to friends' houses when the authorities came
looking for him.

In May 1998, petitioner went to a local clinic because she was having problems
with her chest. During her absence, her three youngest children stayed at the
local church while her husband stayed at home with the four oldest children.
When she returned home, neighbors told her that people had come to the house
looking for her husband and that he and the children who were with him ran
and jumped the fence in the back of the house. She waited in her home for her
husband and children to return. They never did. She has not seen her husband or
children since that day and does not know their whereabouts.

Two or three days later, Kabila security agents came to Mulanga's home at 1:00
in the morning, showed her their cards, and demanded to know the whereabouts

of her husband. They told her that "if you don't show us where your husband is,
that's going to be a problem." Id. at 166. According to Mrs. Mulanga, they said
her husband had "been doing a bad thing ... [a]nd they said that, you people,
you're anti-Kabila doing the politic here." Id. The security agents stayed in
petitioner's home for about 15-20 minutes, during which time they taped her
mouth and beat her up while saying "you've got to tell us the whereabouts." Id.
at 167. They then pushed her into their car and drove about an hour to the
government house in Kinsuca, where seven other people were being held. She
was held at the house for 6 days, during which she was given no food,
repeatedly asked the whereabouts of her husband, beaten, and pulled to the
ground by her hair.
9

On the sixth day, Mulanga escaped from the government house with the help of
a Kabila soldier named Alfonse, who was a friend of hers and of her husband.
She testified that Alfonse "came there and they called my name and he helped
me to get out of there." Id. at 168. Alfonse brought petitioner to the Zaire River
(Congo River), where she boarded a boat along with two other people headed
for Brazzaville in the Republic of the Congo, a separate country. She entered
Brazzaville and remained there from June to November 1998 with Marie Jean
Ngalulu, a woman from her village.

10

While Mulanga was in Brazzaville, civil war broke out. See id. at 239. As a
result, there was destruction and looting in much of the southern part of the
country, "particularly in Brazzaville, where more than one-third of the country's
population normally resides. Fighting and heavy looting led to the destruction
of many southern towns, and much of Brazzaville, the capital. An estimated
800,000 civilians, approximately one-third of the country's estimated population
of 3 million, were displaced." Id. As petitioner and her friend ran, shots were
fired. Her friend was hit by a bullet. When she noticed her friend on the ground,
not moving, Mulanga kept running for her life. She ended up at the Bethel
church where she was taken in and allowed to stay for 3 years.

11

While Mulanga was at the Bethel church another political change occurred in
her former country. On January 16, 2001, Laurent Kabila was assassinated by
one of his guards. His son, Joseph Kabila, took control of the government of the
DRC 10 days later. See id. at 212. As his father had before him, Joseph Kabila
ruled by decree and without the constraint of a constitution. According to the
State Department, security agents monitored mail passing through both private
carriers and the DRC's "dysfunctional" state mailing system and there was a
widespread belief that the government monitored telephone communications.
See id. at 224. Although there were fewer reported cases of human rights
abuses, "[i]n general security forces committed these abuses with impunity.

Prison conditions remained harsh and life threatening. Security forces

continued to arbitrarily arrest and detain citizens; however, the number of such
cases decreased. Prolonged pretrial detention remained a problem, and dozens
of suspects remained in detention without formal charges filed, without any
evidence presented against them, and without an opportunity to defend
themselves in court." Id. at 213. The 2001 State Department Report also
indicates that "[t]he Government operated 220 known prisons and other places
of detention, and in all such facilities, conditions remained harsh and life
threatening; there reportedly were many other secret or informal detention
centers." Id. at 219.
12

Other abuses which continued during the Joseph Kabila regime were also noted
by the 2001 State Department Report:

13

There was no known action taken against the members of the security forces
responsible for torturing, beating, or otherwise abusing the persons in the
following cases from 2000: The November assault and shooting of Athanese
Matenda Kyelu; the November beating of 10 students; the October beating and
torture of 2 military court officials; the October detention and beatings of 7
members of the opposition Union for Democracy and Social Progress (UDPS);
the May beating to death of Mukoko and the torture of his family; the May
killing of Nsaiala Nkia Mbiyavange, beating of his parents, and rape of his
sister; the April beating of Koyagialo Ahonzim Wasana; the April torture of
Freddy Lomboto wa Lomboto; the March public raping of a young girl; the
March beating of the president of the Front for the Survival of Democracy
(FSD); the March beating and torture of 2 refugees; the February torture and
harassment of residents of villages surrounding Dingi-Dingi; the February
torture and beating of Zuki Phu Kuta Dieudonne, a reporter for the newspaper
Palme d'Or and president of the human rights NGO Justice Sans Frontiere; the
January torture of Freddy Loske Lisumbu, editor of the newspaper La Libre
Afrique; the January death by torture of Iyela Mokolo; the January torture of
UDPS activist Crispin Ipondo Banda; the January beating of Christophe Kalonji
Ntambwe and his wife; and the January torture of Albert Angbana Mate by the
ANR.

14

Id. at 218 (emphasis added). Also, according to the State Department, although
the government adopted a law liberalizing political activity, 5 UDPS members
were arrested after they submitted a request to hold a public rally without
submitting party registration papers. "They were charged with assault against
state security, incitement to revolt, and sedition." Id. at 220. Needless to say, at
least through 2001, government agents continued to target members of the
UDPS in a crackdown on political activity.

15

Petitioner testified that she was afraid to return to the DRC after Joseph Kabila
took control of the government in 2001 because "it's the same thing, father and
son." Id. at 180. In June 2001, after a family member obtained a Canadian
passport for her, Mrs. Mulanga fled Brazzaville "because of the violent things
that were going there at the time." Id. at 175. She headed for Abidjan, Ivory
Coast, where she remained for one month. About a month later, she arrived in
the United States. Petitioner testified before the IJ that she was afraid to go
back home "[b]ecause [Kabila's security forces] see me as anti-Kabila and I
have never shown them the whereabouts of my husband. They say I'm involved
in the politics, so they will do those bad things." Id. at 177.

16

In addition to U.S. State Department Reports, petitioner tendered documentary

evidence in support of her account. As previously stated, petitioner obtained
and introduced into evidence a medical certificate from Dr. Okenge, in which
he stated that petitioner came into the emergency room in 1995 and that "
[w]hen she arrived, the patient had a large bullet wound which had come very
close to the left side of the chest cavity." Id. at 285. An INS medical report also
confirms that petitioner sustained a second degree gunshot wound. See id. at
326. Additionally, petitioner introduced into evidence a letter from her cousin,
Baidouin Mwanza Ngoie Jezu Ntumba, in which he confirmed that petitioner
had been shot during a demonstration and that security forces were searching
for her husband when they detained her. See Id. at 275. Petitioner also supplied
her birth and marriage certificates and offered to introduce her children's birth
certificates. See id. at 104. 3 Petitioner also introduced into the record reports by
Amnesty International, Human Rights Watch, and other organizations,
describing human rights abuses in the DRC and the Republic of the Congo.

B. Procedural Background
17

Petitioner arrived at John F. Kennedy International Airport on July 9, 2001.

Thereafter, she was detained in the Elizabeth Detention Center in Elizabeth,
New Jersey.4 On July 24, 2001, an INS asylum officer found her to have
demonstrated a credible fear of persecution and torture and issued her a Notice
to Appear. See id. at 449. Petitioner admitted to the Immigration Judge that she
attempted to enter the United States with a fraudulent Canadian Passport, see id.
at 82, and thereafter submitted to the Immigration Court her application for
asylum pursuant to 208 of Immigration and Nationality Act ("INA"),
withholding of removal pursuant to INA 241(b)(3), and for relief under the
Convention Against Torture.5 An evidentiary hearing on the merits of
petitioner's application was held on March 20, 2002.

18

On April 4, 2002, the IJ denied petitioner's application and ordered that she be

removed to the DRC from the United States pursuant to the charges in the
Notice to Appear. A.R. at 65. Specifically, the IJ held that she had failed to
meet her burden of proving persecution or a well-founded fear of persecution
on account of her husband's political opinions being attributed to her. The IJ
found that there was no record evidence showing that Mr. Mulanga was a
UDPS member or that he was a vocal opponent of the government. The IJ also
held that petitioner did not show that the April 1995 beating of her husband was
politically motivated.
19

Additionally, the IJ questioned petitioner's testimony on two points. The IJ

noted that petitioner asserted in her airport statement that she did not know who
shot her, but later testified at her hearing that she was shot by one of Mobutu's
soldiers. The IJ found "incredulous" petitioner's account of her escape from the
government detention house with the help of Alfonse, "question[ing] the ease
with [which] she `escaped'" and noted that no mention of Alfonse was made in
petitioner's asylum application. Id. at 64. The IJ also noted that petitioner had
lived in the DRC from 1995 to 1998 with no incident. Based on the lack of
evidence that Mr. Mulanga's 1995 arrest was politically motivated, the
supposed inconsistency between the airport statement and petitioner's
testimony, the IJ's rejection of petitioner's account of her escape with Alfonse,
and the relative calm experienced by Mulanga between 1995 and 1998, the IJ
held "this Court is not convinced that these incidents amount to past
persecution of the respondent." Id.

20

Finally, the IJ found that petitioner did not establish a well-founded fear of
persecution if returned to the DRC because she did not testify to any incidents
occurring after 1998 and had no knowledge of her husband's whereabouts or
political activities. The IJ observed that there was no reason to believe that the
new regime in power in the DRC was actively pursuing petitioner.

21

Petitioner timely filed a Notice of Appeal to the BIA. On July 26, 2002, the
BIA affirmed, without opinion, the Immigration Judge's decision. On August
23, 2002, petitioner filed a Petition for Review and Motion for Stay of
Removal. This Court granted petitioner's Motion for Stay of Removal on
September 17, 2002.

II. Jurisdiction and Standard of Review

22

This Court has jurisdiction to review final orders of removal pursuant to 8

U.S.C. 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d 542, 548 (3d Cir.2001).
Where, as here, the BIA defers to the decision of the IJ, we review the decision
of the IJ. See id. at 549 n. 2 (citation omitted).

23

Whether an asylum applicant has demonstrated past persecution or a wellfounded fear of future persecution is a factual question, which we review under
the substantial evidence standard. See Gao v. Ashcroft, 299 F.3d 266, 272 (3d
Cir.2002). Adverse credibility determinations are also reviewed for substantial
evidence. See id. "We will uphold the findings of the BIA to the extent that
they are supported by reasonable, substantial and probative evidence on the
record considered as a whole, and will reverse those findings only if there is
evidence so compelling that no reasonable factfinder could conclude as the BIA
did." Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir.2003) (citing Gao, 299
F.3d at 272). See also Zubeda v. Ashcroft, 333 F.3d 463, 471 (3d Cir.2003).

III. Legal Standards

24

The basic principles underlying Mulanga's claim are well established. The
Attorney General has the discretionary power to grant asylum to an alien who
qualifies as a refugee within the meaning of 8 U.S.C. 1101(a)(42)(A). See 8
U.S.C. 1158(b)(1). A refugee is "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 or herself 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 social group, or political
opinion[.]" 8 U.S.C. 1101(a)(42)(A). As previously stated, Mulanga appeals
the denial of her application for asylum, withholding of removal, and relief
under the United Nations Convention Against Torture.

25

To establish eligibility for asylum based on past persecution, an asylum

applicant must show: (1) one or more incidents rising to the level of
persecution; (2) that is "on account of" one of the statutorily-protected grounds;
and (3) is committed either by the government or by forces that the government
is either unable or unwilling to control. Gao, 299 F.3d at 272 (citing Navas v.
INS, 217 F.3d 646, 655 (9th Cir.2000)). A showing of past persecution gives
rise to a rebuttable presumption of a well-founded fear of future persecution.
See 8 C.F.R. 208.13(b)(1); Abdulrahman v. Ashcroft, 330 F.3d 587, 592 (3d
Cir. 2003). "That presumption can be rebutted if the INS establishes by a
preponderance of the evidence that the applicant could reasonably avoid
persecution by relocating to another part of his or her country or that conditions
in the applicant's country have changed so as to make his or her fear no longer
reasonable." Id. at n. 3 (citations omitted). "Where past persecution is not
established, `[a]n applicant can demonstrate that she has a well-founded fear of
future persecution by showing that she has a genuine fear, and that a reasonable
person in her circumstances would fear persecution if returned to her native
country.'" Abdulrahman, 330 F.3d at 592 (citing Gao, 299 F.3d at 272). Once

an asylum applicant shows that "[s/]he has a subjective fear of persecution that
is supported by objective evidence that persecution is a reasonable
possibility[,]" the Attorney General may, but is not required to, grant asylum.
Chang v. INS, 119 F.3d 1055, 1066 (3d Cir.1997) (citation omitted).
26

Asylum applications constitute simultaneous applications for mandatory

withholding of removal. See 8 C.F.R. 208.3(b). In order to qualify for
withholding of removal, an applicant must show a "clear probability" that his or
her life or freedom would be threatened if s/he is deported. Lin v. INS, 238 F.3d
239, 244 (3d Cir.2001) (citing Chang, 119 F.3d at 1066). "The question under
that standard is whether it is more likely than not that the alien would be
subject to persecution." INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 81
L.Ed.2d 321 (1984). The standard for eligibility for withholding of removal is
more exacting than the asylum standard. See Chang, 119 F.3d at 1066. "Thus,
if an alien fails to establish the well-founded fear of persecution required for a
grant of asylum, he or she will, by definition, have failed to establish the clear
probability of persecution" standard for withholding of removal. Zubeda, 333
F.3d at 469-70 (citation omitted).

27

In order to obtain relief under the Convention Against Torture, an applicant

must establish "that it is more likely than not that he or she would be tortured if
removed to the proposed country of removal." Sevoian v. Ashcroft, 290 F.3d
166, 175 (3d Cir.2002) (quoting 8 C.F.R. 208.16(c)(2)). Once an applicant
establishes a claim for relief under the Convention Against Torture, s/he may
not be removed to the country where the torture occurred. Zubeda, 333 F.3d at
472.

28

The burden of establishing eligibility for asylum, withholding of removal under

INA 241(b)(3), and relief under the Convention Against Torture is on the
applicant.6 "The testimony of the applicant, if credible, may be sufficient to
sustain the burden of proof without corroboration." 8 C.F.R. 208.13(a),
208.16(b), (c)(2). However, as discussed in greater detail below, otherwisecredible applicants may be required, under certain circumstances, to provide
corroborating evidence in order to meet their burden of proof. See Abdulai, 239
F.3d at 554.

IV. Analysis
A.
29

The parties' dispute in this case concerns the IJ's assessment of the sufficiency
of the evidence presented by Mrs. Mulanga during her removal proceedings.

Her primary contention is that the IJ unreasonably required her to provide

corroborating documentation of her husband's political party affiliation in
support of her claims of past persecution on account of imputed political
opinion and membership in a particular social group.7 Mulanga insists that the
IJ's corroboration requirement together with the IJ's disbelief of Mulanga's
escape from the government house and her account of her shooting resulted in
findings not supported by substantial evidence in the record.
30

In Abdulai v. Ashcroft, we observed that "[t]he INA is completely silent as to

whether, when it is reasonable to expect corroborating evidence, an otherwisecredible applicant who neither produces such corroboration nor adequately
explains his or her failure to do so may be deemed to have failed to meet his or
her burden of proof." 239 F.3d at 552. We explained that "[s]aying that
something may be enough is not the same as saying it is always enough [and
that] ... in fact, the most natural reading of the word `may' [in the context of 8
C.F.R. 208.13(a) and 208.16(b)] is that credible testimony is neither per se
sufficient nor per se insufficient. In other words, `it depends.'" Id. (emphasis in
original). Applying principles of Chevron8 deference, we upheld in Abdulai the
corroboration rule set out in In re S-M-J, Interim Decision 3303 (BIA 1997),
and we formulated a three-part inquiry: (1) an identification of facts for which
"it is reasonable to expect corroboration," (2) an inquiry as to whether the
applicant has provided information corroborating those facts; and, if he or she
has not, (3) an analysis of whether an applicant has adequately explained why
s/he was unable to do so. Abdulai, 239 F.3d at 554. 9

31

In Qiu v. Ashcroft, the court noted that before rejecting an applicant's petition
for lack of sufficient corroboration, "the adjudicator must (a) identify the
particular pieces of missing, relevant documentation, and (b) show that the
documentation at issue was reasonably available to the petitioner." 329 F.3d
140, 153 (2d Cir.2003) (citing Diallo v. INS, 232 F.3d 279, 285-90 (2d
Cir.2000)). The Second Circuit also cautioned that "[u]nless the BIA anchors
its demands for corroboration to evidence which indicates what the petitioner
can reasonably be expected to provide, there is a serious risk that unreasonable
demands will inadvertently be made." Id. Additionally, the Court in Qiu noted
that the requirement that an adjudicator support his or her demand for
corroborative evidence with a reasoned explanation that conforms to the actual
conditions in the applicant's former country of residence "constitutes one small,
but crucial, defense against potentially mistaken, culturally based assumptions
about the existence and availability of documents." Id. at 154.

32

In addition to laying the foundation for the three-part corroboration

requirement, the BIA has commented on the relationship between the burden of

proof and the role of the IJ in deportation hearings. In S-M-J-, the BIA opened
its analysis with a discussion of the unique nature of such proceedings. The
BIA explained:
33

Although we recognize that the burden of proof in asylum and withholding of

deportation cases is on the applicant, we do have certain obligations under
international law to extend refuge to those who qualify for such relief. See
United Nations Convention Relating to the Status of Refugees, July 5, 1951,
189 U.N.T.S. 150. Congress incorporated the international obligation into
domestic United States law when it enacted the withholding of deportation
provision of the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102,
prohibiting the refoulement of refugees. Going beyond the refoulement
provision, Congress also established asylum as a discretionary form of relief for
those who could meet a lesser standard of proof. See section 208 of the
Immigration and Nationality Act, 8 U.S.C. 1158 (1994). Because this Board,
the Immigration Judges, and the Immigration and Naturalization Service are all
bound to uphold this law, we all bear the responsibility of ensuring that refugee
protection is provided where such protection is warranted by the circumstances
of an asylum applicant's claim.

34

* * * * Although the burden of proof in establishing a claim is on the applicant,

the Service and the Immigration Judge have a role in introducing evidence into
the record.

35

21 I. & N. Dec. at 723-26. Thus, asylum and withholding of removal cases are
different from other types of cases because, while the burden of proof is borne
by the applicant, the IJ and the INS have a responsibility to make sure that
qualified applicants are provided refuge in accordance with the obligations
imposed by international law. As we explained in Senathirajah v. INS, "[t]he
procedures for requesting asylum and withholding of deportation are not a
search for a justification to deport. Justice requires that an applicant for asylum
be given a meaningful opportunity to establish his or her claim." 157 F.3d 210,
221 (3d Cir.1998).

36

Against this background, we believe the IJ's findings and conclusions regarding
corroboration are not supported by substantial evidence in the record. In the
first instance we note that the IJ and counsel for petitioner engaged in a
colloquy about the documents that would be presented in support of Mulanga's
case. Counsel represented that attempts were being made to obtain the birth
certificates of Mulanga and her seven children, a marriage certificate, and a
doctor's certificate with the help of Andre Kalanzo, an "unofficial
representative" to the United Nations from the UDPS party. A.R. at 99-100.

When counsel told the IJ that Mr. Kalanzo was in the United States and would
be obtaining the documents through a contact person in the DRC, the IJ asked
if this person was going to send the birth and marriage certificates and asked
that he submit an affidavit in order to establish chain of custody. See id. at 11315. The IJ also asked counsel to obtain evidence, such as an affidavit, from the
church group with which Mulanga sought refuge in Brazzaville and to find out
whether Mulanga had family in Canada, where she initially wanted to go. See
id. at 115.
37

Mulanga provided most of the documentation requested by the IJ. With the
help of her cousin, she was able to supply her marriage and birth certificates. 10
She also came forward with a medical certificate from the doctor who treated
her for her gunshot wound and an INS medical report confirming that she had
sustained a second degree gunshot wound. Additionally, her cousin sent a letter
confirming that (1) Mulanga was shot in the chest during a demonstration
which Mobutu's security forces were trying to stop, (2) security forces "got
their hands on her" while searching for her husband, (3) she managed to escape
to Brazzaville, and (4) he thought that Mr. Mulanga and the children were dead.
Id. at 275. Mulanga also supplied country condition reports for both the
Democratic Republic of the Congo and the Republic of the Congo, which
document flagrant human rights violations and corroborate her assertion that
UDPS members are persecuted for their political opinions. This evidentiary
showing is consistent with S-M-J-'s recommendation that asylum applicants
provide country condition reports and documentation in support of facts that are
central to their claims, such as evidence of place of birth and medical treatment.
21 I. & N. Dec. at 725.

38

However, despite the citation of Matter of S-M-J- in the IJ's decision, she did
not apply its standards to the facts of this case. The IJ identified in her decision
facts for which corroboration was sought, i.e. Mr. Mulanga's membership in the
UDPS and whether it motivated his 1995 arrest and beating. However, prior to
issuing the decision the IJ gave no hint that Mulanga should have come
forward with evidence corroborating Mr. Mulanga's membership in the UDPS
or with evidence that his arrest and beating in 1995 were politically motivated.
First, in regard to Mr. Mulanga's political affiliation, the IJ commented that
"there is no documentary evidence in the [record] to indicate that the
respondent's husband was in fact a member of the UDPS. In addition, there is
also no evidence that ... he was a vocal opponent of the government...." Id. at
63. But the IJ failed to explain what corroborating evidence would be
reasonably expected, and she failed to provide the applicant with an opportunity
to explain its absence. Mrs. Mulanga testified that she was forcibly taken from
her home by government agents making it very unlikely that she was able to

leave with any documents concerning her husband's UDPS membership. In fact,
the IJ may have even discouraged Mrs. Mulanga from presenting such
evidence. As previously noted, the IJ requested that counsel present numerous
documents in connection with Mulanga's application. The applicant complied
with most of the requests or offered an explanation for why the requested
documents were not immediately available. At no time, however, did the IJ
even hint that she expected documentary evidence of Mr. Mulanga's political
affiliation or of his political activities. Thus, while the IJ requested specific
documents on some issues, she made no request of Mrs. Mulanga for
corroboration of her husband's political affiliation. Instead, the IJ rejected
Mulanga's testimony when she failed to produce that corroboration.
39

It seems all the more unreasonable to require corroboration given that Mulanga
had been away from her home for a four-year period before her hearing and she
had been in INS detention since her arrival in New York in July 2001. Even
assuming that country conditions were considered and the evidence was
obtainable, the IJ erred by not alerting Mulanga during the removal
proceedings that the absence of corroboration of Mr. Mulanga's UDPS
membership would lead to the denial of her application, thereby giving her an
opportunity to explain her inability to corroborate.

40

Next, in regard to Mrs. Mulanga's testimony that her husband was arrested and
beaten by government security forces in 1995, and that her husband's
mistreatment was politically motivated, the IJ commented that "there is no
evidence to corroborate this assertion. This is nothing but mere conjecture on
her part." App. at 64. But in her opinion, the IJ failed to explain why Mulanga's
testimony was "mere conjecture" or why it was lacking in credibility. Indeed, if
Mulanga provides documentation concerning her husband's political affiliation
or a reasonable explanation as to why such documentation cannot be provided,
we do not understand what additional documentary evidence Mrs. Mulanga
would be required to present to establish that her husband was physically
attacked by government agents for his political beliefs. In fact, other than the
evidence of general country conditions, which clearly documented numerous
acts of political repression, Mrs. Mulanga was in no position to document her
story. In this regard, we have previously observed the following:

41

It is obvious that one who escapes persecution in his or her own land will rarely
be in a position to bring documentary evidence or other kinds of corroboration
to support a subsequent claim for asylum. It is equally obvious that one who
flees torture at home will rarely have the foresight or means to do so in a
manner that will enhance the chance of prevailing in a subsequent court battle
in a foreign land. Common sense establishes that it is escape and flight, not

litigation and corroboration, that is foremost in the mind of an alien who comes
to these shores fleeing detention, torture and persecution.
42

Senathirajah, 157 F.3d at 215-16.

43

In any event, Mrs. Mulanga testified that security agents arrested her husband
while he was a member of the UDPS and held him in a government house for
two days where they beat him leaving "his face puffed and a lot of scars on his
arms." A.R. at 156. She also supplied a letter from her cousin which confirmed
that Mulanga had been shot during a demonstration and that security forces
were searching for her husband. In these circumstances, the IJ's credibility
determination, unless bolstered by an unreasonable failure to provide
documentation concerning her husband's political affiliation, cannot be
regarded as supported by substantial evidence.

B.
44

We believe it necessary to comment on other aspects of this case. Mulanga

asserts that the IJ erred by impugning her credibility based on a discrepancy
between her airport interview and her testimony at the hearing. She also asserts
that the IJ erred by disbelieving her account of her escape from detention with
the help of a soldier named Alfonse. Additionally, she asserts that she has
established a well-founded fear of persecution if returned to the DRC.

45

At the airport Mulanga said that she was unaware who shot her, while at the
hearing before the IJ, she testified she was shot by one of the Mobutu soldiers.
As an initial matter, immaterial discrepancies between airport interviews and
subsequent testimony should not be used to make adverse credibility
determinations. See generally Senathirajah v. INS, ("By placing too much
reliance on an airport interview ... the INS seriously undermined the reliability
of the administrative process."). See also Balasubramanrim v. INS, 143 F.3d
157, 164 (3d Cir.1998) (inconsistencies between the airport statement and
petitioner's testimony before the immigration judge held to be insufficient to
support the BIA's finding that the petitioner was not credible). In any case, the
statements are not necessarily inconsistent. Mrs. Mulanga stated at the airport
that she did not know who shot her. That is, she did not know the name of the
shooter. But, in her testimony, she said it was a Mobutu soldier. These
statements, taken together, could mean that Mulanga knew that a Mobutu
soldier shot her but she could not identify that soldier by name at the airport
interview. In this context, the IJ's use of Mrs. Mulanga's airport statement to
impeach her credibility is not supported by the record.

46

We also agree that the IJ's explanation of her disbelief of the manner in which
Mulanga escaped from detention is unsound.11 The IJ found testimony that
Alfonse, a Kabila soldier, helped her to escape "incredulous." A.R. at 64. But
the IJ did not articulate a foundation for her disbelief other than to say that
Mulanga's ability to walk away with a government soldier "lacks common
sense." Id. Mrs. Mulanga did explain at her hearing that Alfonse, a government
soldier, had been a friend of her husband's. She further explained that Alfonse
spoke to the other soldiers at the detention center and then he walked away
with her. If, as the State Department Reports indicate, corruption is rampant in
the military, this scenario is plausible.

C.
47

An applicant for asylum must provide corroborating evidence only when it

would be reasonably expected. In this case, the IJ denied Mrs. Mulanga relief
in large part because of the lack of documentary evidence indicating that her
husband was a member of the UDPS and that he was a vocal opponent of the
government of the DRC. The IJ, however, failed to explain what type of
documentation she expected or required. As we have explained, Mulanga was
forcibly taken from her home and remained away from her home for the fouryear period before her hearing, and she was therefore at a significant
disadvantage in obtaining corroboration. Additionally, the fact that the IJ
requested, through counsel, that Mulanga present a number of corroborating
documents but failed to include a request for documentary evidence of Mr.
Mulanga's party membership may have signaled to Mulanga that such
corroboration was not needed. In any case, the IJ failed to analyze whether
Mulanga had adequately explained why she was unable to present
corroborating evidence. The IJ also found petitioner's testimony as to her
husband's political activities lacking. The IJ noted "[t]he respondent testified
that her husband was a local leader in charge of the young people and `things
like that.' The respondent offered no further activities that her husband was
purportedly involved in and [she] was unable to expand on the meaning of
`things like that.'" Id. at 63. We note, however, that Mulanga was not asked to
elaborate what she meant by "things like that." We also note that, in any event,
Mulanga's testimony was more descriptive than the citation to "things like that"
suggests. She testified that her husband was the "local person ... [and that] [h]is
primary function was to work with the young people and to help them function
within the party." Id. at 154.

48

We have also explained that Mulanga's airport statement regarding who shot
her in 1995 was not inconsistent with her testimony and that the IJ's explanation
of her disbelief of Mulanga's testimony concerning her escape from a

government house was unsound.

V. Conclusion
49

Accordingly, we will grant the petition for review, vacate the BIA's order, and
remand this case to the BIA for proceedings consistent with this opinion.

Notes:
*

The Honorable R. Barclay Surrick, United States District Judge for the Eastern
District of Pennsylvania, sitting by designation

The American Immigration Law Foundation filed a brief as Amicus Curiae for
Mulanga urging the Court to invalidate the summary affirmance procedure used
by the BIA in this case. Because we remand for other reasons, we do not
address the arguments concerning the summary affirmance procedure

The DRC became independent from Belgian rule in 1960. Mobutu Sese Seiko
ruled the country from 1965 to 1997, when Laurent-Desire Kabila came to
power

In his closing statement, Mulanga's counsel offered to introduce the birth

certificates into evidence,see id. at 203, after the IJ expressed great skepticism
as to whether petitioner had children. See id. at 189 ("Ma'am, do you have these
children? Are they a figment of your imagination? Do they really exist?"). It
appears that, ultimately, the birth certificates were not included as part of the
record. See id. at 210.

At oral argument, Mulanga's counsel told the Court that Mrs. Mulanga was
paroled from detention due to a medical condition some time after the removal
proceedings before the IJ

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment

or Punishment, Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465
U.N.T.S. 85

See 8 C.F.R. 208.13(a) ("The burden of proof is on the applicant for asylum
to establish that he or she is a refugee as defined in section 101(a)(42) of the
Act."); 8 C.F.R. 208.16(b) ("The burden of proof is on the applicant for
withholding of removal under section 241(b)(3) of the Act to establish that his
or her life or freedom would be threatened in the proposed country of removal
on account of race, religion, nationality, membership in a particular social

group, or political opinion."); 8 C.F.R. 208.16(c)(2) ("The burden of proof is

on the applicant for withholding of removal under this paragraph to establish
that it is more likely than not that he or she would be tortured if removed to the
proposed country of removal.").
7

We note that an applicant can establish eligibility for asylum or withholding of

removal based on persecution on account of either a political opinion s/he
actually holds or on the basis of one imputed to him or her, whether correctly or
incorrectly, by a foreign governmentSee Balasubramanrim, 143 F.3d at 164 n.
10.

Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc. 467 U.S. 837, 843, 104
S.Ct. 2778, 81 L.Ed.2d 694 (1984) (When reviewing "an agency's construction
of the statute which it administers ... if the statute is silent or ambiguous with
respect to the specific issue, the question for the court is whether the agency's
answer is based on a permissible construction of the statute.").

InS-M-J-, the BIA held that:

Unreasonable demands are not placed on an asylum applicant to present
evidence to corroborate particular experiences (e.g., corroboration from the
persecutor). However, where it is reasonable to expect corroborating evidence
for certain alleged facts pertaining to the specifics of an applicant's claim, such
evidence should be provided... If the applicant does not present such
information, an explanation should be given as to why such information was
not presented... The absence of such corroborating evidence can lead to a
finding that an applicant has failed to meet her burden of proof.

21

I. & N. Dec. 722, 725-26

10

At oral argument, Mulanga's counsel represented to the Court that he asked Mr.
Kalanzo, the UDPS representative to the United Nations, for help obtaining
documentation, but that Mr. Kalanzo left for South Africa the day his help was
requested, remained there for the next two years, and was not in touch
thereafter

11

The IJ noted "[t]hat ... [Mulanga] was just able to, essentially, walk out of her
place of detention lacks common sense. This Court questions the ease with
[which] she `escaped.'" A.R. at 64