18-2618 Malonda v. Barr BIA Connelly, IJ A209 150 722 UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 24th day of November, two thousand twenty.

PRESENT: GUIDO CALABRESI, DENNY CHIN, JOSEPH F. BIANCO, Circuit Judges. _____________________________________

DIEKA MALONDA, Petitioner,

v. 18-2618 NAC WILLIAM P. BARR, UNITED STATES ATTORNEY GENERAL, Respondent. _____________________________________

FOR PETITIONER: Dieka Malonda, pro se, Patterson, CA.

FOR RESPONDENT: Jeffrey Bossert Clark, Acting Assistant Attorney General; Paul Fiorino, Senior Litigation Counsel; Judith O’Sullivan, Trial Attorney, Office of Immigration Litigation, United States Department of Justice, Washington, DC.

UPON DUE CONSIDERATION of this petition for review of a

Board of Immigration Appeals (“BIA”) decision, it is hereby

ORDERED, ADJUDGED, AND DECREED that the petition for review

is GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED for further proceedings consistent with this order.

Petitioner Dieka Malonda, a native and citizen of the

Democratic Republic of Congo (“DRC”), seeks review of an

August 16, 2018 decision of the BIA, affirming a September

22, 2017 decision of an Immigration Judge (“IJ”), denying

Malonda’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (“CAT”). In re

Dieka Malonda, No. A209 150 722 (B.I.A. Aug. 16, 2018), aff’g

No. A209 150 722 (Immigr. Ct. Batavia, N.Y. Sept. 22, 2017).

We assume the parties’ familiarity with the underlying facts

and procedural history.

We have reviewed the IJ’s decision as modified by the

BIA, i.e., minus the resettlement finding that the BIA

declined to reach. See Xue Hong Yang v. U.S. Dep’t of

Justice,

(2d Cir. 2005). We review the

2 agency's factual findings under the substantial evidence

standard, which treats such findings as “conclusive unless

any reasonable adjudicator would be compelled to conclude to

the contrary.”

(b)(4)(B); accord Gjolaj v.

Bureau of Citizenship & Immigr. Servs.,

(2d Cir. 2006) (reviewing the question of nexus for

substantial evidence). However, we will “vacate and remand

for new findings . . . if the agency’s reasoning or its

factfinding process was sufficiently flawed.” Lin v.

Mukasey,

(2d Cir. 2009).

Malonda asserted that, in 2005, soldiers in the DRC

attacked him, raped and killed three of his sisters, and

abducted his father and brother on account of his father’s

political opinion. The IJ found that Malonda failed to

establish either that he suffered past persecution on account

of political opinion based on this attack or that he has a

well-founded fear of future persecution on account of

political opinion. In particular, as to past persecution,

the IJ concluded that “despite the voluminous documents

respondent has presented and his detailed testimony, he has

not provided this Court with a basis to conclude that [the] 3 alleged attack that happened in 2005 was motivated on account

of political opinion.” Certified Admin. Record (“CAR”) at

97-98. The BIA agreed.

As set forth below, we conclude that the agency may have

overlooked material evidence Malonda offered to support his

claim that his father’s membership in the opposition party in

the DRC and corresponding political opinions were the

motivation for the attack on Malonda and his family. Thus,

remand is necessary for the agency to fully consider the

evidence.

To establish eligibility for asylum and withholding of

removal, “the applicant must establish that race, religion,

nationality, membership in a particular social group, or

political opinion was or will be at least one central reason

for persecuting the applicant.”

(b)(1)(B)(i);

§ 1231(b)(3)(A); see also Matter of C-T-L-,

(B.I.A. 2010). There may be “more than one

motive for mistreatment, as long as at least one central

reason for the mistreatment is on account of a protected

ground.” Acharya v. Holder,

(2d Cir. 2014)

(quotation marks omitted). To demonstrate that persecution 4 is on account of an applicant’s political opinion, the

applicant must “show, through direct or circumstantial

evidence, that the persecutor’s motive to persecute arises

from the applicant’s political belief,” rather than merely

the persecutor’s own opinion. Zhang v. Gonzales,

(2d Cir. 2005). The agency’s findings regarding the

persecutor’s motives and the nexus between the harms and a

petitioner’s protected status are reviewed for substantial

evidence. See Gjolaj,

.

Respondent argues that substantial evidence supports the

BIA’s conclusion because Malonda “could not tell whether

three uniformed men, who invaded his father’s home in the

Congo in 2005 and caused his family great harm, were rebels

or government soldiers.” Respondent’s Br. at 16. Malonda’s

inability to identify the uniformed men, however, does not

end the inquiry. As we recently reiterated in Hernandez-

Chacon v. Barr, “[t]he BIA has explained that persecution

based on political opinion is established when there is

‘direct or circumstantial evidence from which it is

reasonable to believe that those who harmed the applicant

were in part motivated by an assumption that [his] political 5 views were antithetical to those of the government.’”

(2d Cir. 2020) (quoting Matter of S-P-,

(B.I.A. 1996)). Thus, the BIA was

required to consider whether Malonda established, through

circumstantial evidence, that the attack on him and his family

in 2005 was based upon his father’s political opinion.

At the hearing, Malonda testified that he believed that

the uniformed soldiers who conducted the attack were from the

government. CAR at 297 (“[W]e’ve got a lot of uniforms, you

know, in the Congo. We’ve got police. We’ve got army.

We’ve got different groups, and presidents, special group of

soldiers, but they, they were working for the government I

can say.”). When asked further about the attackers’ identity

and motivation, Malonda testified that he believed that the

attackers were government soldiers who attacked him and his

family on account of his father’s political opinion based, in

part, on the fact that the soldiers did not attack any other

families living on the street and his father, who was a

medical doctor, was the only person on the street who was an

active member of an opposition political party:

6 Yeah, because since my father was in an opposition and I don’t think it was by mistake that we were the only one who were attacked. They basically knew my political, my father’s political opinion. That’s, [sic] was the main reason that he was, that he was attacked or that we were attacked as a family because if it was only because of rebels and so forth, there were a lot of people on the street and we were the only victims.

CAR at 326; see also CAR at 297 (“[W]e were living in the

street and there was a lot of doctors and we were the only

one who were victims of such attack . . . .”). In

particular, he noted how the armed soldiers, upon entering

only his family’s home, attacked him, raped and killed three

of his sisters, and abducted his father and brother. On the

issue of whether it possibly could have been rebels who

conducted the attack, Malonda in a letter to the IJ after he

provided this testimony, further emphasized that rebel forces

could not reach the area in which his family was living

“because it was protected by the state security forces and

the government.”1 CAR at 355. In our view, the agency failed

1Although not referenced by the IJ, the BIA suggests that an inference can be drawn that it was rebels, rather than soldiers, who conducted the attack by noting that “the record reflects that there was widespread violence and civil strife in the DRC during this period and for many years before and since.” CAR at 2 (citation omitted). That suggestion, 7 to adequately consider whether this evidence, regarding his

father’s active political opposition to the government and

the specific targeting of his house for the attack, could

itself provide a reasonable inference that the uniformed

attackers were not rebels, but rather were government

soldiers retaliating against the family based upon his

father’s political opinion.

Moreover, the BIA also incorrectly states that this

testimony about his family being the sole target of the

soldiers was the only evidence Malonda offered to support his

argument regarding the motivation for the attack. See CAR

at 2 (“While [Malonda] testified that he believed his family

was targeted because of his father’s political opinion in

however, does not account for the situation in Malonda’s particular region, which he asserted was protected by the government and, more importantly, does not explain why the rebels would have targeted only Malonda’s house for such violence. See, e.g., Margosyan v. Barr,

, 499-500 (9th Cir. 2020) (remanding on the nexus between petitioner’s persecution and a protected ground where “[t]he circumstantial evidence in the record raises an inference that the police officers sought to punish or retaliate against [petitioner] for her husband’s political activities, rather than to settle a personal score with her husband, for which there was no evidence”(internal quotation marks and citations omitted)). 8 opposition to the government, the only basis he provided for

this belief was that his family was the only one that was

attacked on his street on that occasion.” (citation

omitted)). The respondent reiterates that erroneous

assertion on appeal. See Respondent’s Br. at 16 (noting that

Malonda’s belief was “speculative, unsupported by record

evidence, and based only on his observation that theirs was

the only neighborhood home invaded”).

Malonda, however, provided additional circumstantial

evidence from which it could be inferred that his family was

attacked by government soldiers, not rebels. More

specifically, Malonda testified that, after his brother was

abducted during the attack, his brother was taken to a camp

where “they were trained to become soldiers to fight again

[sic] rebels.” CAR at 324-25. Malonda repeated this

assertion in his testimony multiple times. See CAR at 327

(“[My brother] explained that he was taken to a camp where

they were trained in order to fight against the rebels, but

basically myself I didn’t know who they were.”); see also CAR

at 327 (“[My brother] explained that it was just a, a group

of soldiers who were fighting against rebels. So, if they 9 were fighting against rebels, we understand that it’s the

government who are fighting against the rebels.”).

Such testimony could further support an inference

regarding the identity and motive of the attackers. Although

the IJ referenced that Malonda testified that his brother was

taken to a military camp and trained to “become a soldier,”

CAR at 98, it concluded that no evidence in the record

suggested the identity of the brother’s captors. However,

the IJ omitted that Malonda also testified that his brother

was trained to fight “against the rebels,” CAR at 327, which

plainly supports an inference that Malonda’s brother was

taken by the government, see also CAR at 355 (letter from

Malonda to the IJ wherein he states that his brother was taken

to be trained to “fight against rebels” and that “[r]ebels

can not fight each other, while the state security forces

does”). Thus, the IJ’s analysis was incomplete, and appears

to evaluate Malonda’s testimony in piecemeal fashion, rather

than in light of the totality of the evidence. Moreover, the

BIA appears to have completely overlooked this particular

evidence in affirming the IJ’s decision.

We recognize that it is “‘emphatically not our role’ to 10 consider whether the petitioner’s explanation, which the IJ

had rejected, is more plausible than the record-supported

inference the IJ had drawn.” Siewe v. Gonzales,

(2d Cir. 2007) (quoting Majidi v. Gonzales,

(2d Cir. 2005)). However, it is well within our role

to remand when we find, as we do here, that the agency may

not have adequately considered the various aspects of the

petitioner’s testimony and evidence, in their totality, in

deciding whether “the harm was motivated, in part, by an

actual or imputed protected ground.” Aliyev v. Mukasey,

(2d Cir. 2008) (internal quotation marks

omitted).

Accordingly, we remand to the agency to more fully assess

the record regarding past persecution and explain its

decision. See Chen v. U.S. I.N.S.,

(2d Cir.

2004) (“[W]here the agency’s determination is based on an

inaccurate perception of the record, omitting potentially

significant facts, we may remand for reconsideration or

rehearing.”); see also Escobar v. Holder,

(7th Cir. 2011) (“Even though our review is deferential, the

[Board] may not simply overlook evidence in the record that 11 supports the applicant’s case.” (alteration in original)

(internal quotation marks omitted)).

A petitioner who demonstrates past persecution benefits

from the presumption that he or she faces a threat of future

persecution for purposes of either asylum or withholding of

removal.

(b)(1) (asylum),

1208.16(b)(1)(i) (withholding of removal); see also Baba v.

Holder,

(2d Cir. 2009) (“The law is clear

that a showing of past persecution shifts the burden to the

government on the question of the petitioner's well-founded

fear of future persecution.”). Because the agency found that

Malonda failed to establish past persecution, it did not give

him the benefit of a presumption of a well-founded fear of

future persecution. As a result, the IJ and the BIA placed

the burden on Malonda to prove a well-founded fear of future

persecution. However, because Malonda may be entitled to the

benefit of the presumption depending upon the agency’s

determination of past persecution after its re-assessment of

the evidence, this issue must be revisited upon remand.

Regardless of whether Malonda ultimately benefits from

the presumption on remand with respect to the issue of future 12 persecution, we note that the BIA also should consider the

threatening telephone call that Malonda referenced in his

testimony, which was not addressed in its decision. In

particular, Malonda stated in his testimony that, after

protesting the Congolese government while in South Africa, he

received a telephone call from an unidentified individual who

told him never to protest again or he would be unable to

return to South Africa (where he moved in 2006 after leaving

the DRC). Malonda explained that, “I think because [other

protestors] were tortured they had to like to, to disclose

maybe the names of the people, but I didn’t really know or

I’m not really sure about how they found out, but what amazed

me it was because I received a phone call a few days after

that protest whereby I was told not to go out and protest

again or else I wouldn’t get my, I wouldn’t take my flight

back to South Africa.” CAR at 330; see also CAR at 322, 331.

The IJ and the BIA relied heavily on Malonda’s trip to the

DRC for the renewal of his visa in 2015 without incident, but

we have said that:

The simple fact of a safe return on a particular occasion does not negate the potential of future harm. Nothing in the regulations requires an 13 applicant to show that she would be immediately persecuted upon return, that persecution would be likely to occur within some short time span, or that it would occur in regular intervals. . . . While return trips may provide some evidence of a relevant change in circumstances, they do not supply the requisite preponderance of evidence.

Kone v. Holder,

, 149–50 (2d Cir. 2010).

Accordingly, we also remand to allow the agency to adequately

consider Malonda’s evidence in full on the issue of future

prosecution, including the telephone call. See, e.g.,

Ivanishvili v. U.S. Dep’t of Justice,

(2d Cir. 2006) (finding that the “IJ . . . did not evaluate,

or even meaningfully acknowledge” testimony and evidence

favorable to the petitioner, “and [that] we must therefore

give the IJ [an] opportunity to do so”). The remand, as it

relates to future persecution or torture, applies to

Malonda’s claims for asylum, withholding of removal under

(b)(3), and relief under the CAT.

For the foregoing reasons, the petition for review is

GRANTED, the BIA’s decision is VACATED, and the case is

REMANDED for further proceedings consistent with this

14 opinion. All pending motions and applications are DENIED and

stays VACATED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

15