                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-23-2003

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Precedential or Non-Precedential: Precedential

Docket No. 02-2868




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                                  PRECEDENTIAL

                                              Filed June 23, 2003

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT


                           No. 02-2868


                        TAKKY ZUBEDA,
                                       Petitioner
                                  v.
          JOHN ASHCROFT, ATTORNEY GENERAL
                OF THE UNITED STATES,
                                       Respondent

           Petition for Review of a Decision of the
                Board of Immigration Appeals
                         A78-824-095

                      Argued: April 1, 2003
         Before: McKEE and SMITH, Circuit Judges,
              and HOCHBERG, District Judge*

                 (Opinion filed: June 23, 2003)




* The Honorable Faith Hochberg, District Judge of the United States
District Court for the District of New Jersey, sitting by designation.
                             2




                      JUDITH BERNSTEIN-BAKER, ESQ.
                      AYODELE GANSALLO, ESQ.
                      HIAS and Council Migration Service
                       of Philadelphia
                      2100 Arch Street, 3rd Floor
                      Philadelphia, PA 19103
                      JONATHAN H. FEINBERG, ESQ.
                       (Argued)
                      Kairys, Rudovsky, Epstein &
                       Messing, LLP
                      924 Cherry Street, Suite 500
                      Philadelphia, PA 19107
                      Attorneys for Petitioner
                      ROBERT D. McCALLUM, ESQ.
                      Assistant Attorney General
                      Civil Division
                      TERRI J. SCADRON, ESQ.
                      Assistant Director
                      ANTHONY W. NORWOOD, ESQ.
                      Senior Litigation Counsel
                      JOHN M. MCADAMS JR., ESQ.
                      STACY S. PADDACK, ESQ. (Argued)
                      Attorney
                      Office of Immigration Litigation
                      Civil Division
                      U.S. Department of Justice
                      P.O. Box 878, Ben Franklin Station
                      Washington, D.C. 20044
                      Attorneys for Respondent


                OPINION OF THE COURT

McKEE, Circuit Judge.
   Takky Zubeda asks us to review the decision of the Board
of Immigration Appeals (the “BIA”) vacating an Immigration
Judge’s ruling granting her relief from an order of removal.
Although the Immigration Judge denied Zubeda’s petition
                                  3


for asylum and withholding of deportation, he found that
she was entitled to relief under the United Nations
Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (hereinafter referred to
as the “Convention Against Torture” or the “Convention”).
The BIA reversed that ruling and ordered Zubeda removed
to the Democratic Republic of the Congo. The BIA’s decision
was based upon its conclusion that the record did not
support the Immigration Judge’s finding that Zubeda would
likely be detained if returned to the DRC. Although it
appears that the Immigration Judge may have taken
administrative notice of that fact, the record is not clear as
to how the Immigration Judge concluded that Zubeda
would likely be detained if deported.
  Inasmuch as the INS agrees that the most appropriate
resolution is remand to the Immigration Judge for
clarification and additional evidence, we will grant Zubeda’s
petition for review and remand the matter to the
Immigration Judge. Moreover, inasmuch as the government
has also agreed to allow Zubeda to raise the issue of her
membership in the Bembe tribe on remand, the
Immigration Judge will also be able to consider any impact
Zubeda’s tribal identity may have on her claim for asylum,
withholding of deportation, or relief under the Convention
Against Torture.2

          I.   FACTS AND PROCEDURAL HISTORY
  Takky Zubeda is a twenty-eight year old female who is
native to, and a citizen of, the Democratic Republic of the
Congo (the “DRC”). She is legally married to a lawful
permanent resident of the United States who entered this
country as a refugee from the DRC in 1993. In 1999, he
traveled briefly to Tanzania, where he and Zubeda were
married. After their marriage, Zubeda returned to the
Congo and lived with her husband’s parents for 22 months.3

2. Remand is not necessary if the record does not support a claim for
relief under the Convention Against Torture. Therefore, we will also
determine whether the record could, as a matter of law, support a claim
for relief under that Convention.
3. Zubeda’s husband is currently in the process of becoming a
naturalized US citizen. His petition to allow her to join him in the US
                                    4


Her current problems with the INS began when she was
detained in December of 2000 while attempting to enter the
United States without proper documentation after arriving
at an airport in New York City. Zubeda was referred to an
INS Asylum Officer for a “credible fear” interview after she
expressed her fear of being returned to the DRC. The
Asylum Officer found her credible and concluded that she
had established a credible fear of persecution if returned to
the DRC.
   The INS served a Notice to Appear on Zubeda on
February 2, 2001. It charged that Zubeda is removable
from the United States under section 212(a)(6)(C)(i) of the
Immigration and Nationality Act (“INA”), 8 U.S.C.
§ 1182(a)(6)(C)(i), for seeking admission to the United States
by fraud or willful misrepresentation, and under section
212(a)(7)(A)(i)(I) of the INA, 8 U.S.C. § 1182(a)(7)(A)(i)(I), for
failing to possess a valid entry document when seeking
admission to the United States.
   She thereafter filed a petition with the INS in which she
requested asylum and withholding of deportation, and “also
sought protection under Article 3 of the Convention,”
Zubeda’s Br. at 3. Zubeda appeared with counsel at the
hearing on that petition and conceded that she was
removable under INA § 212(a)(7)(A)(i)(I) because she lacked
valid travel documents. She denied seeking admission by
fraud or willful misrepresentation, and the Immigration
Judge dismissed those grounds after the INS failed to
produce any proof of those allegations.
  Several documents were admitted into evidence at the
hearing including official country reports prepared by the
U.S. State Department, as well as reports from private
organizations such as Human Rights Watch and Amnesty
International. The evidence also included Zubeda’s asylum
application, the record of the determination of the credible
fear interview, and an affidavit from an expert witness.
Zubeda was the only witness who actually testified.

was approved by the INS on October 10, 2002. Zubeda’s Br. at 9 n.3.
Zubeda claims that there is a wait of over four years for spouses of legal
permanent residents to enter the US as immigrants.
                             5


Inasmuch as the conditions described in that evidence are
key to the Immigration Judge’s final determination, and the
BIA’s subsequent reversal of it, we will summarize the
testimony and country reports in some detail:

        A.   The Democratic Republic of Congo.
   According to the evidence that was introduced, the DRC
(formerly “Zaire”), has a history of flagrant human rights
abuses being perpetrated by both government and rebel
forces. The country is currently embroiled in a vicious civil
war. Six other African countries have aligned themselves
with one of the two sides in that war. The anti-government
faction in that war is composed of two factions: the
Rassemblement Congolais Pour La Democratie (Congolese
Rally for Democracy or “RCD”), and the Mouvement Pour
Liberation du Congo (Movement for the Liberation of Congo
or “MLC”). These fighters are supported by Tutsi factions
from Burundi and Rwanda and by the Uganda People’s
Defense Forces. The anti-government forces control the
eastern part of the DRC, including South Kivu which is
Zubeda’s home region. Government forces, known as Forces
Armees Congolaises (Congolese Armed Forces or “FAC”), are
supported by the governments of Angola, Namibia,
Zimbabwe and by Hutu militants from Rwanda known as
the “interahamwe.” Armed groups that support the
government known as “mayi-mayi,” or “mai mai,” also often
fight in rebel held areas.
  Reports of Amnesty International portray the DRC as a
brutal and life-threatening environment with a predatory
government capable of wielding genocidal force while
teetering on the brink of collapse. A Report states:
    [A]t least 300,000 civilians have fled to neighboring
    countries, while more than one million people have
    been internally displaced in conditions that have
    caused numerous deaths from disease, starvation and
    exposure. This is a snapshot of a catalogue of human
    rights abuses and suffering that the people of the DRC
    have been subjected to since August 1998 by forces
    whose foreign and Congolese political and military
    leaders claim to be fighting for security or sovereignty.
                                   6


     In reality, many of the leaders are involved in a fight
     for political and economic control of the DRC. Amnesty
     International has concluded that these leaders are
     perpetrating, ordering or condoning atrocities on a
     large and systematic scale, and deliberately violating
     people’s individual and collective right to security and
     sovereignty.
                                 *****
     . . . [S]ince the start of 1999, hundreds of unarmed
     civilians have been killed as a result of direct or
     indiscriminate attacks by forces loyal to President
     Kaliba in clear violation of Common Article 3 of the
     Geneva Conventions.
Amnesty International Reports, Democratic Republic of
Congo: Killing Human Decency (May 2000), at 1, 17.4
   Zubeda introduced evidence to establish that her family
was from Baraka, a village in the South Kivu Province in
the eastern part of the DRC. Zubeda testified that her
mother had been raped by soldiers in November of 2000.5
Zubeda was then living in a nearby village with her in-laws,
but she returned to Baraka to care for her mother after the
rape. Her father intended to report the rape to human
rights groups working in the area, but before he could do
so, ten soldiers forcefully entered the family home and
brutalized the family. Zubeda said that these soldiers tied
her father and brother and forced them to watch as they
gang raped her. When they were finished, the soldiers
decapitated her father and brother with machetes and set
fire to the family home while Zubeda’s mother and sister
were still inside. Zubeda testified that she thought the

4. Similar descriptions of conditions in the DRC are found in reports
prepared by Human Rights Watch. See Human Rights Watch, Eastern
Congo Ravaged: Indiscriminate Attacks and Extrajudicial Executions of
Civilians (2000) and Eastern Congo Ravaged: Society Under Attack
(2000).
5. It is unclear whether these soldiers were government soldiers, rebel
soldiers, soldiers from the other countries supporting either side in the
civil war, mai mai or interahamwe. Zubeda testified that she believes,
based on their uniforms, that they were rebel soldiers.
                            7


soldiers committed these atrocities to prevent her father
from reporting her mother’s rape to human rights workers.
   Zubeda said that after the gang rape, she was taken to a
detention camp or military camp where she was again
sexually abused and forced to clean and cook for the
soldiers. Zubeda claims that she was finally able to escape
from the camp along with three other women and flee to
neighboring Tanzania. There, she received assistance from
members of a religious organization who gave her $100 and
a passport belonging to one of the workers. Zubeda claimed
that she was told that the passport would allow her entry
into the United States. According to Zubeda, one of the
female workers took her to the train station in Dar Es
Salaam, Tanzania, and then helped her board the plane
that brought her to New York. Zubeda admitted that she
falsely told INS inspectors in New York that she had come
to visit her brother and attend bible school. She explained
that she lied because she became frightened about telling
the truth when INS inspectors threatened to return her to
the DRC.
  Zubeda claims that her experience is typical for South
Kivu Province which is the site of massive human rights
abuses as documented in various country reports. A report
by Human Rights Watch states:
    [R]ape and other forms of sexual violence have become
    widespread as the war in eastern Congo has grown
    increasingly bitter. One Congolese women’s rights
    group registered 115 rapes between April and July
    1999 in just two regions of Katana and Kalehe in
    South Kivu with thirty in just one April 5 attack on
    Bulindi and Maitu. Groups of ten or more men
    sometimes gang rape one woman. Assailants
    sometimes take women hostage to be used as sexual
    slaves. Both soldiers and armed opposition groups
    have engaged in such abuses, but Hutu armed groups
    are reported to have perpetrated rapes more often than
    other groups. They use sexual violence to terrorize
    civilians, especially those thought to be RCD
    supporters and most especially those who participate
    in civil self-defense forces.
                                    8


Human      Rights   Watch:     Eastern   Congo   Ravaged:
Indiscriminate Attacks, at 5.6 The State Department paints
an even more horrifying picture of terror pervading the
DRC.
     There were reports that Rwandan and Ugandan
     soldiers allegedly raped women during extensive
     fighting in Kisangani in May and June . . . . Rwandan
     troops and RCD rebels also reportedly engaged in rape
     of women in public and often in the presence of their
     families and in-laws. A woman raped in this manner
     generally is forced out of the village, leaving her
     husband and children behind. In June, an RCD/Goma
     soldier . . . stopped a young girl, Fitina, on the road
     between Baraka and Mboko and raped her. After he
     raped her, the soldier discharged his weapon into her
     vagina. According to a number of credible human
     rights organizations, marauding bands of armed men
     in the occupied territories often put victims of rape
     through further painful humiliations by inserting
     rocks, sharp sticks, and hot peppers into their vaginas.
U.S. State Department, 2000 Country Reports on Human
Rights Practices: Democratic Republic of Congo (February
2001), at 10-11. The reign of terror documented by the
State Department includes the following atrocities from
Zubeda’s region:
     On May 14 and 15, in response to an apparent Mai
     Mai slaying of RCD commander Ruzagura during an
     ambush on his motorcade, RCD/Goma forces killed
     hundreds of civilians in and around the town of
     Katogota in South Kivu Province. According to some
     reports, RCD soldiers killed as many as 300 villagers
     by slitting their throats.
                                  *****
     Between August 18 and 24, following a period of
     intense fighting between Mai Mai and RCD forces in
     the Shabunda region of South Kivu Province, the RCD
     carried out a punitive campaign against the villages

6. This is consistent with reports of the U.S. State Department as well as
the conditions Zubeda described in her testimony.
                               9


    between the towns of Lulingu and Nzovu. Soldiers sent
    by RCD Commandant Macumu burned the villages;
    more than 300 villagers were burned alive and 3,000
    homes were destroyed.
                             *****
    On July 19, in the Fizi district of South Kivu Province,
    Banyamulenge and Burundial soldiers killed an
    estimated 150 persons on the town of Lubamba by
    slitting their throats. The local population sought
    refuge in the nearby town of Dine.
                             *****
    There were numerous reported killings along the road
    from Uvira to Bukavu in South Kivu Province . . . . The
    climate of insecurity in the occupied territories and
    particularly in the Kivu Province forced many local
    residents to abandon their homes and created food
    shortages as armed bandits kept farmers from working
    in their fields.
Id. at 6-7.

      B.      Asylum and Withholding of Deportation.
  The Attorney General only has discretion to grant asylum
to a deportable alien if the alien qualifies as a “refugee.” See
INA § 208 (a), 8 U.S.C. § 1158(a). “Refugee” is defined by
statute as:
    [A]ny person who is outside any country of such
    person’s nationality . . . and who 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). Therefore an alien seeking asylum
must present some evidence that the alleged persecutors
want to punish him/her “on account of ” one of the five
enumerated grounds in order to be eligible for a grant of
asylum. INS v. Elias-Zacarias, 502 U.S. 478 (1992).
                             10


   Courts have frequently explained that the “well-founded
fear of persecution” that an alien must demonstrate
involves both a subjectively genuine fear of persecution and
an objectively reasonable possibility of persecution. INS v.
Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The
subjective prong requires a showing that the fear is
genuine. Mitey v. INS, 67 F.3d 1325, 1331 (7th Cir. 1995).
Determination of an objectively reasonable possibility
requires ascertaining whether a reasonable person in the
alien’s circumstances would fear persecution if returned to
the country in question. Chang v. INS, 119 F.3d 1055, 1065
(3d Cir. 1997). The law does not require that asylum be
granted even if the alien qualifies as a “refugee.” Rather,
that is left to the discretion of the Attorney General and is
decided on a case by case basis.
   Withholding deportation under INA § 243(h), 8 U.S.C.
§ 1253(h), is closely related to asylum. However, Congress
has declared: the “Attorney General shall not deport or
return an alien. . . to a country if the Attorney General
determines that such alien’s life or freedom would be
threatened in such country on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” Id. (emphasis added). Therefore, the
Attorney General must withhold deportation if the alien
qualifies for relief under INA § 243(h).
   In order to obtain mandatory withholding of deportation
under § 243(h), the alien must first establish by a “clear
probability” that his/her life or freedom would be
threatened in the proposed country of deportation.
Janusiak v. INS, 947 F.2d 46, 47 (3d Cir. 1991). “Clear
probability” means that it is “more likely than not” that an
alien would be subject to persecution. INS v. Stevic, 467
U.S. 407, 429-30 (1987). The “clear probability” standard is
a more rigorous standard than the “well-founded fear”
standard for asylum. Janusiak, 947 F.3d at 47. 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
required for withholding of deportation. Id. Under both the
“well founded fear” threshold required for asylum and the
“clear probability” required for withholding of deportation,
                                   11


the alien must establish that persecution he/she fears is
“on account of ” one of the enumerated classifications or
activities incorporated into the definition of “refugee.”7

           C.   The Immigration Judge’s Decision.
   After receiving the aforementioned documentary evidence,
and hearing Zubeda’s testimony, the Immigration Judge
concluded “that [Zubeda] has failed to present to me that
quantum of credible testimony necessary to establish the
basis of her claim [for asylum].” Administrative Record
(“AR”), at 49. The Immigration Judge’s support for this
adverse credibility determination included citations to
inconsistencies between Zubeda’s testimony and her
written asylum application which the Immigration Judge
believed undermined Zubeda’s credibility. A.R. at 49-51.
  He then stated:
     I am not unaware of the atrocious human rights
     violations in the Congo, including the raping of women
     by security forces, and the indiscriminate murders of
     civilians by these forces. All in all, the government of
     the Congo is a miserable excuse of a sovereign
     government. However, the Congo does not hold a
     monopoly on abusive treatment of its citizens, and I
     cannot grant relief to an alien on the mere fact of
     hailing from such a country. Again, [Zubeda’s]
     testimony is suspect for the reasons I have noted, and
     she has the burden of proof to present detailed and
     consistent testimony, which she has failed to do.
Id. at 51. Accordingly, the Immigration Judge denied
Zubeda’s claims for asylum and withholding of deportation.
  However, the Immigration Judge held that Zubeda did
qualify for relief under the Convention Against Torture. He
reasoned:
     Can I state with any degree of confidence that [Zubeda]
     would be permitted to arrive in the Congo and
     immediately go about her business unmolested? No, I

7. “Race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1101(a)(42)(A) § 1101(a)(42)(A).
                            12


    can’t, and neither can I state with any degree of
    certainty that [Zubeda] would [not] be physically
    harmed upon her return. But . . . I have little
    confidence that [she], whatever her background, would
    be treated with more deference than her fellow citizens,
    none of whom apparently is immune to government
    atrocities. It is clear from the evidence in this record
    that the Congolese government, through its security
    forces, are irresponsible as a whole and have no regard
    for the well being nor the human rights of citizens.
    Forcibly returning there any citizen of that troubled
    land . . . should give any judge great pause. At least I
    am convinced that [Zubeda] would be detained upon
    her arrival. Virtually every government detains its
    citizens for some period of time after that citizen is
    deported or forcibly removed from another country. But
    given the atrocious history and present country
    conditions of the Congo, I believe that [Zubeda] has
    shown the likelihood of being physically abused,
    perhaps raped, which is almost modus operandi, while
    detained. At least it is highly doubtful that [Zubeda]
    would be treated any more leniently than her fellow
    citizens under similar detention status.
Id. at 54. The Immigration Judge then granted relief under
the Convention Against Torture, and the INS appealed that
ruling to the BIA. The BIA reversed and Zubeda filed the
instant petition for review.

              II.   STANDARD OF REVIEW
  Since the BIA conducted a de novo review of the record,
we are reviewing the BIA’s decision, and not the ruling of
the Immigration Judge. Abdulai v. Ashcroft, 239 F.3d 542,
548-49 (3d Cir. 2001). We sustain BIA’s determination if
there is substantial evidence in the record to support it.
Abdille v. Ashcroft, 242 F.3d 477, 483 (3d Cir. 2001).
“Substantial evidence is more than a mere scintilla and is
such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Senathirajah v. INS,
157 F.3d 210, 216 (3d Cir. 1998) (quotation omitted).
Under this deferential standard, “the BIA’s finding must be
upheld unless the evidence not only supports a contrary
                              13


conclusion, but compels it.” Abdille, 242 F.3d at 483-84
(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1
(1992)). However, in order to place our review of the BIA’s
decision in its proper context, and to assist in determining
if this record could support the relief the Immigration
Judge afforded Zubeda, we will first discuss the
requirements of the Convention Against Torture.

          A.   The Convention Against Torture.
   Zubeda seeks protection under Article 3 of the United
Nations Convention Against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment, opened
for signature February 4,1985, S. Treaty Doc. No. 100-20,
at 20 (1988), 23 I.L.M. 1027, 1028 (1984). The United
States signed the Convention on April 18, 1988, and the
Senate ratified it on October 27, 1990. 136 Cong. Rec. S17,
486-501 (daily ed. Oct. 37, 1990). It became binding on the
United States in November of 1994 after President Clinton
delivered the ratifying documents to the United Nations.
U.N. Doc. 571 Leg/SER.E/13.IV.9 (1995); Convention, art.
27(2). The Foreign Affairs Reform and Restructuring Act of
1988 (“FARRA”) initiated implementation of the Convention.
Section 2242, Pub.L. No. 105-277, Div. G, 112 Stat. 2681-
761 (Oct. 21, 1988) (codified at note to 8 U.S.C. § 1231).
That legislation requires that “[n]o state . . . expel, return
(‘refouler’) or extradite a person to another state where
there are substantial grounds for believing that he would be
in danger of being subjected to torture.” Id. Accordingly, “it
shall be the policy of the United States not to expel, . . or
otherwise effect the involuntary return of any person to a
country in which there are substantial grounds for
believing the person would be in danger of being subjected
to torture. . . . ” Id.; see also Li v. Ashcroft, 312 F.3d 1094,
1103 (9th Cir. 2002).
  “An applicant for relief on the merits under [Article 3] of
the Convention Against Torture bears the burden of
establishing ‘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, 174-175 (3d
Cir. 2002) (quoting 8 C.F.R. § 208.16(c)(2)). Unlike
establishing a “reasonable fear of persecution” for asylum,
                             14


“[t]he standard for relief [under the Convention on Torture]
has no subjective component, but instead requires the alien
to establish, by objective evidence, that he[/she] is entitled
to relief.” Id. at 175. (citation and internal quotations
omitted).
   The alien’s testimony, if credible, may be sufficient to
sustain the burden of proof without corroboration. Mansour
v. Immigration and Nationalization Service, 230 F.3d 902,
907 (7th Cir. 2000) (citing 8 C.F.R. § 208.16(c)(2)). If an
alien meets his/her burden of proof, withholding removal
under the Convention is mandatory just as it is for
withholding of deportation under § 243(h). INA § 241(b)(3);
8 C.F.R. §§ 208.16 - 208.18.
  Under   the   implementing   regulations       that    were
promulgated pursuant to the Convention,
    Torture is defined as an act by which severe pain or
    suffering, whether physical or mental, is intentionally
    inflicted on a person for such purposes as obtaining
    from him or her or a third person information or a
    confession, punishing him or her for an act he or she
    or a third person has committed or is suspected of
    having committed, or intimidating or coercing him or
    her or a third person, or for any reason based on
    discrimination of any kind, when such pain or
    suffering is inflicted by or at the instigation of or with
    the consent or acquiescence of a public official or other
    person acting in an official capacity.
8 C.F.R. § 208.18(a)(1).
   “Torture is an extreme form of cruel and inhuman
treatment and does not include lesser forms of cruel and
inhuman treatment or punishment that do not amount to
torture.” 8 C.F.R. § 208.16(c)(3)(i). The Convention “draws a
clear distinction between torturous acts as defined in
Article 1 and acts [of cruelty] not involving torture
referenced in Article 16.” In Re J-E, 23 I. & N. Dec. 291,
295 (March 22, 2002). “The severity of the pain and
suffering inflicted is a distinguishing characteristic of
torture.” Id.
  Rape can constitute torture. Rape is a form of aggression
constituting an egregious violation of humanity. See
                                   15


Margaret A. Lyons, Hearing the Cry Without Answering the
Call: Rape, Genocide And The Rwandan Tribunal, 28
Syracuse J. Int’l L. 99, 99-100 (2001). The scarring effects
of rape compare with “psychological sequelae of . . .
survivors of abuse constituting torture under international
law. . . .” Lopez-Galarza v. INS, 99 F.3d 954, 963 (9th Cir.
1996) (citing Note, Torture by Means of Rape, 84
Georgetown L.J. 1913, 1931 (1996)). “The effects of rape
appear to endure for months or even years. One study
found that twenty-six per cent [of the rape survivors
studied] felt that they had not yet recovered four to six
years after their rapes.” Id., at n. 10 (citation omitted).
   Moreover, courts have equated rape with conduct
recognized under the law of nations as torture. In Al-Saher
v. INS, 268 F.3d 1143, (9th Cir. 2001), the court granted
the petition for review of an alien seeking to avoid
deportation to Iraq under the Convention Against Torture.
In concluding that the record supported the alien’s claim
that he would likely be tortured if returned, the court
stated:
     torture techniques [reported in country reports for Iraq
     in    1997]    included   branding,   electric   shocks
     administered to the genitals, and other areas, beating,
     burning with hot irons, suspension from rotating
     ceiling fans, dripping acid on the skin, rape, breaking
     limbs, denial of food and water, and threats to rape or
     otherwise harm relatives. . . .
Id., at 1147 (emphasis added). The court expressed no
ambiguity or uncertainty in referring to those receiving
such treatment as “torture victims.” Id. After reviewing the
record, the court concluded that “[i]f forced to return to
Iraq, it is likely that Al-Saher would be tortured again.” Id.
at 1148; see also Kadic v. Karadzic, 70 F.3d 232, 242 (2d
Cir. 1995) (referring to allegations of “murder, rape, forced
impregnation, and other forms of torture,”); In re Extradition
of Suarez-Mason, 694 F.Supp. 676, 682 (N.D. Cal. 1988)
(stating “shock sessions were interspersed with rapes and
other forms of torture.”).8 Moreover, Congress has defined

8. See also Farmer v. Brennan, 511 U.S. 825, 952 (1994) (Blackmun
concurring) (referring to prison rape as “the equivalent of ” and “nothing
less than torture.”).
                                16


torture in a different context as including “the use of rape
and other forms of sexual violence.” Torture Victims Relief
Act of 1998, Pub. L. No. 105-320 § 3, 112 Stat. 3016 (1998)
(emphasis added).9
   Similarly, the BIA has held that rape can constitute
sufficient persecution to support a claim for asylum. Matter
of DV, Interim Dec. 3252 (BIA 1993). Two courts of appeals
have also held that rape and sexual violence against women
may constitute sufficient persecution to support a grant of
asylum. See, e.g., Shoafera v. INS, 288 F.3d 1070 (9th Cir.
2000); Angoucheva v. INS, 106 F.3d 781 (7th Cir. 1997);
Lopez-Galarza v. INS, 99 F.3d 954 (9th Cir. 1996); Lazo-
Majano v. INS, 813 F.2d 1432 (9th Cir. 1996), overruled on
other grounds by Fischer v. INS, 79 F.3d 1432 (9th Cir.
1996)(en banc).
  The severe pain and suffering endemic to rape is a
necessary but not sufficient element of torture under the
Convention. The regulations also require us to consider: the
intent of the persecutor(s), whether the suffering will be
imposed for one of the purposes specified under the
Convention, and whether it will likely be inflicted with the
knowledge or acquiescence of a public official with custody
or control over the victim. 8 C.F.R. § 208.18(a).
  Although the regulations require that severe pain or
suffering be “intentionally inflicted,” id., we do not interpret
this as a “specific intent” requirement. Rather, we conclude
that the Convention simply excludes severe pain or
suffering that is the unintended consequence of an
intentional act. See Deborah E. Anker, Law of Asylum in
the United States 465, 486 (3d ed. 1999) (citing J. Hermann
Burgers & Hans Danelius, The Convention Against Torture:
A Handbook on the Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment 41).
The regulation does state: “in order to constitute torture, an
act must be specifically intended to inflict severe physical
or mental pain or suffering.” 8 C.F.R. § 208.18(a)(5).

9. The BIA has itself, in an unpublished opinion, held that rape and
sexual assault constitute torture within the terms of the Convention
Against Torture. See, e.g., Matter of Kuna, A76491421 (BIA July 12,
2001) (unpublished decision).
                             17


However, the regulation immediately explains: “[a]n act that
results in unanticipated or unintended severity of pain and
suffering is not torture.” The intent requirement therefore
distinguishes between suffering that is the accidental result
of an intended act, and suffering that is purposefully
inflicted or the forseeable consequence of deliberate
conduct. However, this is not the same as requiring a
specific intent to inflict suffering. Our conclusion in this
regard is consistent with 8 C.F.R. § 208.18(a). A subsection
of that regulation provides:
    (4) In order to constitute torture, mental pain or
    suffering must be prolonged mental harm caused by or
    resulting from:
    (i) The intentional infliction or threatened infliction of
    severe physical pain or suffering;
    (ii) The administration or application, or threatened
    administration or application, of mind altering
    substances or other procedures calculated to disrupt
    profoundly the senses or the personality;
    (iii) The threat of imminent death; or
    (iv) The threat that another person will imminently be
    subjected to death, severe physical pain or suffering, or
    the administration or application of mind altering
    substances or other procedures calculated to disrupt
    profoundly the sense or personality.
8 C.F.R. § 208.18 (a) (4) (emphasis added). Therefore, the
Convention does not require that the persecutor actually
intend to cause the threatened result. It is sufficient if the
persecutor causes severe psychological suffering by
threatening beatings for one of the specified purposes such
as extracting information or coercing a confession. The
persecutor need not intend to “make good” on his/her
threats for the resulting suffering to constitute torture so
long as the threats are sufficiently protracted, and/or of
such an egregious nature to elevate the forseeable suffering
to the level of “torture.”
  Moreover, requiring an alien to establish the specific
intent of his/her persecutors could impose insurmountable
obstacles to affording the very protections the community of
                                   18


nations sought to guarantee under the Convention Against
Torture. See Bolanos-Hernandez v. INS, 767 F.2d 1277,
1285 (9th Cir. 1985).10
  As we have noted, the Convention requires that the
severe pain or suffering be imposed for certain specified
purposes “such . . . as obtaining information[ ] . . . or a
confession, . . . or intimidating or coercing him or her or a
third person, . . . .” 8 C.F.R. § 208.18 (a) (1) (2000). This
record could support a finding that the conduct described
in the DRC was for the purpose of coercing
and intimidating Zubeda and/or members of her family.
This is particularly true given the testimony regarding gang
rape, and evidence that family members were forced to
watch. It is difficult to imagine conduct that is more
intimidating.
   The Immigration Judge apparently concluded that, given
the record of systematic rape in the DRC, and the likelihood
that Zubeda would be detained upon her return, it was
likely that she would be raped while in official detention.
That being the case, those detaining her would, by
definition, be government agents.
  Zubeda therefore could satisfy the final burden of proving
that future torture would be at the hands of, or with the
acquiescence of, government agents.11 Although there may
be some doubt about the proper apportionment of blame
between government agents and local militia or rebels for
some past acts of torture, there can be little doubt that
government agents would be responsible for any detention
Zubeda would have to undergo upon her return and any
rape while detained.12

10. As noted by Prof. Karen Musalo, the law has long accepted that “[t]he
victim may not know the exact motivation of his or her persecutor.”
Karen Musalo, Irreconcilable Differences? Divorcing Refugee Protections
from Human Rights Norms, 15 Mich. J. Int’l L. 1179, 1210 (1994).
11. See 8 C.F.R. § 208.18 (a) (torture must be “inflicted by or at the
instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity.)”
12. Even though we assume that future rapes while detained would not
involve family members or third persons being forced to endure
                                   19


                     C.   The BIA’s Decision.
  In a four paragraph decision, only two paragraphs of
which were devoted to discussing the legal principles
involved, the BIA sustained the government’s appeal,
vacated the Immigration Judge’s decision, and ordered
Zubeda removed to the Congo. As noted above, since
Zubeda appeals from the BIA’s de novo review of the
Immigration Judge’s decision, we review the BIA’s decision;
not the decision of the Immigration Judge. Abdulai, 239
F.3d at 548-49 (3d Cir. 2001).13
  The BIA based its ruling upon Matter of J-E, I&N Dec.
291 (BIA 2002). There, with seven Board members
dissenting, the BIA concluded that conditions in Haitian
prisons did not constitute torture under the Convention.
Accordingly, a majority of the Board held that the
Convention Against Torture did not preclude returning a
Haitian national to Haiti. In reversing the decision of the
Immigration Judge here, the BIA noted the similarities
between the conditions in the Congo and the evidence in J-
E as follows:
     we found therein that evidence of the occurrence in
     Haitian prisons of isolated instances of mistreatment
     that may rise to the level of torture as defined in the
     Convention Against Torture is insufficient to establish
     that it is more likely than not that the respondent will
     be tortured if returned to Haiti.
(Emphasis Added). AR at 3.14

watching, the Immigration Judge could reasonably conclude that any
custodial rape would nevertheless involve coercion and intimidation.
Indeed, it is difficult to imagine how one could reasonably conclude that
the conduct described in the country reports could have any other
purpose.
13. If, however, the BIA had stated that it adopted the Immigration
Judge’s ruling for the reasons set forth therein, and did not provide an
independent analysis, we would review the decision of the Immigration
Judge as if it were the decision of the BIA. Abdulai v. Ashcroft, 239 F.3d
542, 549 n. 2 (3d Cir. 2001).
14. The BIA’s reference to “isolated” instances of mistreatment is both
puzzling and troubling. The relevant reports here describe mistreatment
in the DRC as “systematic” and “large scale,” not “isolated instances” as
the BIA suggests.
                             20


   In addition, the BIA found that the evidence did not
support the Immigration Judge’s finding that Zubeda would
likely be detained upon return to the Democratic Republic
of the Congo. The BIA stated:
      The background evidence establishes that prison
    conditions in the Congo remain harsh and life
    threatening. The Immigration Judge found that the
    respondent would be detained upon return to the
    Congo. However, we note a dearth of evidence to
    support any finding that the respondent is likely to be
    detained for any reason.
AR at 3. The BIA also concluded that Zubeda “failed to
establish that the harsh prison conditions establish a
probability that she will be detained in a prison in the
Congo, much less that she will be individually targeted for
any harm by the government of the Congo.” Id.
   The BIA’s rather terse analysis completely ignores the
basis of the Immigration Judge’s decision. Obviously, prison
conditions do not establish a likelihood of detention, and
the Immigration Judge’s ruling is not to the contrary.
Rather, he relied upon the uncontested country reports
prepared by the State Department and the aforementioned
human rights organizations. He reached a conclusion about
the rampant brutality in the DRC and the terror that is
inflicted upon its citizens, particularly those who reside in
the region Zubeda is from. The Immigration Judge then
appears to have taken administrative notice of the
likelihood that Zubeda would be detained if forced to return
to the DRC and reached the seemingly unremarkable
conclusion that, given the conditions in the country, and
the documented frequency with which soldiers resort to
rape, there was a likelihood that Zubeda would be raped if
detained. The BIA’s analysis is therefore seriously flawed.
  As the Court of Appeals for the Seventh Circuit stated in
Mansour: “The BIA in a minimalistic and non-detailed
manner addressed [the alien’s] torture claim; leaving us to
ponder whether the BIA sufficiently focused on [her] claim
or merely concluded it was not viable because of its
determination that [the alien’s] prior testimony on asylum
was not credible.” 230 F.3d at 908.
                                21


   Moreover, the Immigration Judge’s rejection of Zubeda’s
claim for asylum and withholding of deportation does not
control the analysis of her claim for relief under the
Convention Against Torture. As noted above, asylum and
withholding of deportation require that the alien be both a
“refugee,” and establish either a well founded fear, or
probability of persecution, “on account of ” at least one of
five specified grounds. The Convention Against Torture is
not limited to “refugees” nor does persecution have to be
“on account of ” political opinion, religious or social group,
etc. Rather, the Convention simply seeks to prevent any
country from having to return someone to a place where it
is likely he/she will be tortured.
   Yet, the BIA reasoned: “the IJ specifically found [Zubeda]
to be incredible and the respondent has not contested that
finding. As such, the respondent has failed to meet her
burden of proof. Accordingly, the Service’s appeal will be
sustained.” AR at 3. However, Zubeda’s credibility for
purposes of establishing her asylum and withholding of
deportation claims does not defeat her ability to “meet her
burden of proof ” under the Convention Against Torture.
Allowing the taint of the earlier adverse credibility
determination to bleed through to the BIA’s consideration of
her claim under the Convention Against Torture without
further explanation is therefore error.15
     [T]he Board failed to recognize the central distinction
     that claims for relief under the Convention are
     analytically separate from claims for asylum under INA
     § 208 and for withholding of removal under INA
     § 241(b)(3). Put another way, a claim under the
     Convention is not merely a subset of claims for either
     asylum or withholding of removal.
Kamalthas, 251 F.3d at 1283. This aspect of the BIA’s
opinion is even more troubling because, as we shall
explain, the record is not adequate to support the adverse
credibility determination that the BIA adopted.
  The BIA accepted the adverse credibility ruling of the

15. Inasmuch as this issue may come before the BIA again following
remand to the Immigration Judge, it is important to note this error.
                                   22


Immigration Judge without question even though the
Immigration Judge’s conclusion regarding Zubeda’s
testimony was, in part, based upon conflicts between her
testimony during the immigration hearing on the one hand,
and statements made in her asylum affidavit and during
her asylum interview on the other. In Balasubramanrim v.
INS, 143 F.3d 157, 161 (3d Cir. 1998), we cautioned
against placing too much weight on inconsistencies
between an asylum affidavit and subsequent testimony at a
hearing before an Immigration Judge. Caution is required
because of the numerous factors that might make it
difficult for an alien to articulate his/her circumstances
with the degree of consistency one might expect from
someone who is neither burdened with the language
difficulties, nor haunted by the traumatic memories, that
may hamper communication between a government agent
in an asylum interview and an asylum seeker. This is
particularly true when we consider that such an alien may
have tried to suppress the very memories and details that
have suddenly become so important to establishing his/her
claim. Id at 164.16 Recently, in Ezeagwuna v. INS, 325 F.3d
396 (3rd Cir. 2003), we cited our decisions in
Balasubramanrim and Senathirajah, and stated, “The
manner of eliciting [information in airport interviews] is
crucial to their probative value.” Id. at 408. Yet, here the
BIA accepted the Immigration Judge’s partial reliance upon
contradictions in Zubeda’s testimony at the deportation
hearing and statements during her airport interview
without any information about the circumstances of that
interview. The BIA correctly notes that Zubeda does not
challenge the Immigration Judge’s credibility determination
on her asylum and withholding of deportation claims.
However, that does not allow the BIA to rely upon those

16. “There are a series of common psychological responses to torture and
human rights violations as recognized by the Manual on the Effective
Investigation and Documentation of Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment.” Piwowarczyk, Seeking Asylum:
A Mental Health Perspective, 16 Geo. Immigr. L.J. 155, 157 (2001) (citing
the    MANUAL      ON      THE   EFFECTIVE      INVESTIGATION       AND
DOCUMENTATION OF TORTURE AND OTHER CRUEL, INHUMAN OR
DEGRADING TREATMENT OR PUNISHMENT (1999) (submitted to the
United Nations Office of the High Commissioner for Human Rights)).
                                 23


rulings on this record in denying Zubeda’s claim under the
Convention Against Torture.17
  The     BIA    cavalierly   dismissed     the   substantial
documentation of conditions in the DRC by suggesting that
Zubeda’s claim for relief was somehow limited to
“background evidence establish[ing] that prison conditions
in the Congo remain harsh and life threatening.” AR at 3.
Although the BIA “is not required to ‘write an exegesis’ on
every contention,” Mansour v. INS, 230 F.3d 902, 908 (7th
Cir. 2000), the “analysis” offered here is simply inadequate
to afford the meaningful review that both Zubeda and the
INS deserve. The BIA stated that it had considered the
“background evidence” and we assume that this is a
reference to the country reports that were introduced before
the Immigration Judge. Official as well as unofficial country
reports are probative evidence and can, by themselves,
provide sufficient proof to sustain an alien’s burden under
the INA. See Kamalthas v. INS, 251 F.3d 1279, 1284 (9th
Cir. 2001).
  However, the BIA then proceeds by mischaracterizing the
reports as “background evidence” relating to prison
conditions in the DRC. As is evident from excerpts set forth
above, the country reports that were introduced establish
the extent to which armed forces terrorize residents in the
DRC, especially Zubeda’s region of that country. They do
not address prison conditions in the manner that the BIA
suggests in its exceedingly brief reference to “background
evidence.” Reducing Zubeda’s claim to an attack on the
kind of inhumane prison conditions that formed the basis
of the Board’s decision in Matter of J-E, totally ignores the
fact that this record is replete with reports from government
agencies and human rights organizations that detail what
appear to be country wide, systematic incidents of gang
rape, mutilation, and mass murder. Country reports such

17. To his credit, the Immigration Judge recognized this concern
regarding reliance upon airport interviews and cited our opinions in
Balasubramanrim, and Senathirajan, See AR at 51. Nevertheless, he
proceeded to rely upon Zubeda’s statements in the asylum petition and
the airport interview without any evidence of the circumstances under
which those statements were obtained or the affidavit executed.
                               24


as the ones Zubeda introduced here are “the most
appropriate and perhaps the best resource” for “information
on political situations in foreign nations.” Kazlauskas v.
INS, 46 F.3d 902, 906 (9th Cir. 1995) (quoting Rojas v. INS,
937 F.2d 186, 190 n.1 (5th Cir., 1991)).
   Of course, reports of generalized brutality within a
country do not necessarily allow an alien to sustain his/her
burden under the Convention Against Torture. As the
Immigration Judge correctly noted: “[T]he Congo does not
hold a monopoly on abusive treatment of its citizens, and I
cannot grant relief to an alien on the mere fact of hailing
from such a country.” AR at 51. However, as the
Immigration Judge also apparently realized, “gross, flagrant
or mass violations of human rights within the country of
removal . . .” can corroborate an alien’s claim that he/she
will be subjected to torture upon return; thus allowing the
alien to present the proof necessary for establishing a claim
under the Convention Against Torture. 8 C.F.R. § 208.16
(c)(3); Kamalthas, 251 F.3d at 1284. The BIA’s de novo
analysis never considers this.
   The applicable regulations require that all relevant
evidence be considered in determining the likelihood of
future torture. This includes evidence of past torture as
well as conditions in the country that would increase the
likelihood of history repeating itself. The regulations
provide:
    (3) In assessing whether it is more likely than not that
    an applicant would be tortured in the proposed country
    of removal, all evidence relevant to the possibility of
    future torture shall be considered, including, but not
    limited to:
    (i) Evidence   of   past    torture   inflicted   upon   the
    applicant;
    (ii) Evidence that the applicant could relocate to a
    part of the country of removal where he or she is not
    likely to be tortured;
    (iii) Evidence of gross, flagrant or mass violations of
    human rights within the country of removal, where
    applicable; and
                                 25


     (iv) Other relevant information regarding conditions in
     the country of removal.
8 C.F.R. § 208.16(c)(3) (emphasis added).

              III.   NECESSITY FOR A REMAND
   As we have summarized above, the foundation of
Zubeda’s claim for relief under the Convention Against
Torture is that she will likely be detained by the
government of the DRC if forcibly returned and that it is
more likely than not that she will be raped while in
detention there.18 As noted above, in granting Zubeda relief
under the Convention Against Torture, the Immigration
Judge wrote, “I am convinced that [Zubeda] would be
detained upon her arrival. Virtually every government
detains its citizens for some period of time after that citizen
is deported or forcibly removed from another country.” A.R.
at 54.
   The BIA reversed because of what it described as “a
dearth of evidence to support any finding that [Zubeda] is
likely to be detained for any reason.” Id. at 3. During
argument, the attorney for the INS devoted much of her
time to arguing that the record simply did not support the
Immigration Judge’s conclusion about the likelihood of
Zubeda’s detention upon return to the DRC. Yet, as we
have already noted, it appears from the Immigration
Judge’s opinion that he simply took administrative notice of
that fact. Zubeda claims that the BIA’s concern over a
“dearth of evidence to support [Zubeda’s] detention” is
therefore entirely unremarkable. Zubeda argues that the
law does not require that she prove anything as obvious as
the likelihood of detention upon forcible return to her
homeland after deportation for attempting to illegally enter
another country. According to Zubeda, the Immigration
Judge’s factual conclusion regarding events that will likely
follow upon her return is too commonly known to require
proof, and the country reports allow a reasonable fact
finder to make a decision about the likelihood of rape while

18. Counsel has argued that Zubeda is even more likely to be raped in
detention because she is from a rebel-held region.
                                  26


held in detention in the DRC. She therefore asks us to
conclude that the BIA erred in not deferring to the
Immigration Judge’s factual conclusion based upon an
administratively noticed fact.
   In McLeod v. Immigration and Naturalization Service, 802
F.2d 89 (3d Cir. 1986), we noted that an agency can take
official or administrative notice of commonly acknowledged
facts. We explained:
     Official notice, rather than judicial notice, is the proper
     method by which agency decisionmakers may apply
     knowledge not included in the record. The
     Administrative Procedure Act allows a decisionmaker to
     take “official notice” of material not appearing in the
     evidence in the record. Official notice is a broader
     concept than judicial notice. Both doctrines allow
     adjudicators to take notice of commonly acknowledged
     facts, but official notice also allows an administrative
     agency to take notice of technical or scientific facts that
     are within the agency’s area of expertise.
Id. at 93 n.4. Here, however, the Immigration Judge did not
expressly invoke the doctrine of official or administrative
notice in evaluating Zubeda’s claim.19
   The likelihood of official detention greatly bolsters
Zubeda’s claim under the Convention given the apparent
likelihood that she would be raped if detained. Although we
conclude that the BIA erred in providing only a minimal
analysis of Zubeda’s claim and deciding the appeal on the
basis of Matter of J-E, as well as allowing rulings on her
asylum and withholding of deportation claim to control her
claim under the Convention, we are reluctant to simply
reverse and remand to the BIA given the ambiguity
surrounding the Immigration Judge’s possible invocation of
the doctrine of administrative notice.
  Moreover, counsel for the INS has conceded that, given
the state of this record, the matter can best be resolved by
a remand to the Immigration Judge (as opposed to the BIA)
to allow clarification of the record and an opportunity for

19. We do not suggest that an Immigration of Administrative Judge must
always formally announce that he or she is taking administrative notice.
                                 27


any additional fact finding or evidence that may be
necessary. See INS v. Ventura, 537 U.S. 12 (2002).
Accordingly, we will remand the matter to the Immigration
Judge for further proceedings consistent with this opinion.
In doing so, we commend counsel for the INS for the fair,
forceful and thorough manner in which she presented the
government’s appeal. The government has no interest in
deporting Zubeda if she is entitled to relief from the order
of deportation.
     In light of the universal condemnation of torture in
     numerous      international    agreements,    and    the
     renunciation of torture as an instrument of official
     policy by virtually all of the nations of the world (in
     principle if not in practice), . . . . an act of torture
     committed by a state official against one held in
     detention    violates   established    norms    of   the
     international law of human rights, and hence the law
     of nations.
Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2nd Cir. 1980).20
  The INS has also agreed that Zubeda will be able to raise
the issue of her tribal identity before the Immigration Judge
on remand. The administrative record confirms that Zubeda
is a member of the Bembe tribe. Form 1-870 (record of
determination of credible fear interview), at 2. (A.R. at 296).
Zubeda’s counsel claimed at oral argument that she is also
entitled to relief because of treatment afforded Bembes in
the DRC. The Bembe tribe is from the South Kivu Region of
the DRC which is a rebel-held and controlled area of the
Congo. According to Amnesty International, a number of
people who live in the Kivu Region are being detained by
the DRC and are at risk of being tortured. App. at 95.
Moreover, Amnesty International reports that a number of
these individuals are being arbitrarily detained simply
because they are from the Kivu Region. Id. Amnesty

20. See also Universal Declaration of Human Rights, General Assembly
Resolution, 217(III)(A)(Dec. 10, 1948) (“no one shall be subjected to
torture”), American Convention on Human Rights, Art. 5, OAS Treaty
Series No. 36 at 1, OAS Off. Rec. OEA/Ser 4 v/II 23, doc 21, rev.2.
(English ed. 1975) (“No one shall be subjected to torture or to cruel,
inhuman or degrading punishment or treatment”).
                                28


International indicates that members of the Bembe tribe are
generally opposed to the killing of the Tutsi minority in the
Congo. App. at 82. Zubeda’s counsel claims that the
government of the DRC regards Bembes as sworn enemies
of the government. Counsel also notes that, according to
Amnesty International, mayi-mayi, who are armed groups
supporting the government, have targeted Bembes for
killing. App. at 82. In Zubeda’s counsel’s view, this strongly
supports her claim that she is more likely to be tortured if
returned to the Congo. It may also provide the missing “on
account of ” element for a claim of asylum or withholding of
deportation.
  However, counsel concedes that this issue was not raised
by prior counsel before the Immigration Judge.21
Nevertheless, inasmuch as the INS has agreed to allow
Zubeda to raise this issue on remand, the Immigration
Judge will be able to determine if Zubeda’s ethnicity affects
the prior denial of relief. As we have previously noted:
     Justice requires that an applicant for asylum or
     withholding of deportation be afforded a meaningful
     opportunity to establish his or her claim. Deportation
     is always a harsh measure; it is all the more replete
     with danger when the alien makes a claim that he or
     she will be subject to death or persecution if forced to
     return to his or her home country. In enacting the
     Refugee Act of 1980 Congress sought to give the United
     States sufficient flexibility to respond to situations
     involving political or religious dissidents and detainees
     throughout the world.
Senathirajah, 157 F.3d 210, 221 (3d Cir. 1998) (internal
quotation marks omitted) (quoting INS v. Cardoza-Fonseca,
480 U.S. 421, 449 (1987)).

                       IV.   CONCLUSION
  Accordingly, for the reasons set forth above, we will
vacate the decision of the BIA and remand to the

21. Zubeda’s current counsel did not represent her when she appeared
for the evidentiary hearing before the Immigration Judge.
                            29


Immigration Judge for proceedings consistent with this
opinion.

A True Copy:
        Teste:

                 Clerk of the United States Court of Appeals
                             for the Third Circuit
