         11-2746-ag
         Ilunga v. Holder
                                                                                        BIA
                                                                                 Verrillo, IJ
                                                                               A079 303 829
                             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 A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 30th day of August, two thousand thirteen.
 5
 6       PRESENT:
 7                ROSEMARY S. POOLER,
 8                ROBERT D. SACK,
 9                RICHARD C. WESLEY,
10                     Circuit Judges.
11       _____________________________________
12
13       BUZANGU EUGENE KALUME ILUNGA, AKA
14       EUGENE B. KALUME, AKA MUTUMBO TABWE,
15                Petitioner,
16
17                          v.                                  11-2746
18                                                              NAC
19       ERIC H. HOLDER, JR., UNITED STATES
20       ATTORNEY GENERAL,
21                Respondent.
22       _____________________________________
23
24       FOR PETITIONER:               Justin Conlon, North Haven, CT.
25
26       FOR RESPONDENT:               Tony West, Assistant Attorney
27                                     General; Daniel E. Goldman, Senior
28                                     Litigation Counsel; Eric W.
29                                     Marsteller, Trial Attorney, Office
30                                     of Immigration Litigation, United
31                                     States Department of Justice,
32                                     Washington, D.C.
 1       UPON DUE CONSIDERATION of this petition for review of a

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

 3   ORDERED, ADJUDGED, AND DECREED that the petition for review

 4   is DENIED.

 5       Buzangu Eugene Kalume Ilunga, a native and citizen of

 6   the Democratic Republic of the Congo, seeks review of a June

 7   10, 2011, order of the BIA affirming the January 7, 2010,

 8   decision of Immigration Judge (“IJ”) Philip Verrillo, which

 9   denied his application for asylum, withholding of removal,

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

11   re Buzangu Eugene Kalume Ilunga, No. A079 303 829 (B.I.A.

12   June 10, 2011), aff’g No. A079 303 829 (Immig. Ct. Hartford

13   Jan. 7, 2010).   We assume the parties’ familiarity with the

14   underlying facts and procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the decision of the IJ as supplemented by the BIA.     See Yan

17   Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005).     The

18   applicable standards of review are well-established.

19   See 8 U.S.C. § 1252(b)(4)(B); see also Yanqin Weng v.

20   Holder, 562 F.3d 510, 513 (2d Cir. 2009).

21       An IJ may terminate an asylee’s status if the

22   government proves by a preponderance of evidence that

23   “[t]here is a showing of fraud in the alien’s application

                                   2
 1   such that he was not eligible for asylum at the time it was

 2   granted.”   8 C.F.R. § 1208.24(a)(1), (f).   Here, the agency

 3   found that Ilunga committed fraud in his 2001 application by

 4   falsely misrepresenting that: (1) he had never filed for or

 5   been denied asylum in the United States when his 1997 asylum

 6   application was denied in 1999; (2) he had lived in

 7   Kinshasa, Democratic Republic of Congo (“DRC”), between 1994

 8   and 2000, and had been employed there between 1996 and 1999,

 9   though he had claimed during his 1999 merits hearing that he

10   had been in the United States between 1996 and 1999; (3) he

11   had never been in removal proceedings; (4) he had not

12   previously entered the United States; and (5) he had not

13   previously used other names though he had assumed two false

14   names to enter the United States.   The agency also found

15   that Ilunga’s 2001 application would have been denied

16   because it did not establish changed country conditions and

17   it was contradicted by his previous application.

18       Ilunga does not challenge the agency’s findings that he

19   committed fraud and that his past persecution claim would

20   have been denied.   Rather, he contends that the objective

21   evidence that Tutsis like him were persecuted in the DRC

22   sufficiently established his eligibility for relief despite


                                   3
 1   his lack of credibility.     To the contrary, substantial

 2   evidence supports the agency’s determination that the

 3   government established a likelihood that his fraud was such

 4   that it rendered him ineligible for asylum.

 5       Where an IJ has found an applicant’s past persecution

 6   claim to be not credible, the applicant may still prevail on

 7   a credible theory of future persecution “so long as the

 8   factual predicate of the applicant’s claim of future

 9   persecution is independent of the testimony that the IJ

10   found not to be credible.”     Paul v. Gonzales, 444 F.3d 148,

11   154 (2d Cir. 2006).   Here, Ilunga’s claim for future

12   persecution rested on the same factual predicate as his

13   claim for past persecution, namely that he was an ethnic

14   Tutsi and perceived as a Tutsi in the DRC.     Moreover,

15   contrary to Ilunga’s assertion, the IJ did not find that he

16   was Tutsi, and Ilunga did not provide any objective evidence

17   that he was, in fact, an ethnic Tutsi.     Therefore, Ilunga

18   would have been unable to establish a credible, subjective

19   fear that he would be persecuted due to his Tutsi ethnicity.

20   Cf. Paul, 444 F.3d at 157 (finding that future persecution

21   claim was independent of adverse credibility determination

22



                                     4
 1   because applicant’s claim that he was a Christian was

 2   credible).

 3       Furthermore, Ilunga likely would not have been able to

 4   establish an objective fear of persecution because his

 5   background materials indicate that the DRC’s government

 6   signed a ceasefire with the Tutsi rebels and contain no

 7   evidence that continued attacks on civilians are fueled by

 8   ethnic rivalries.   See 8 U.S.C. § 1101(42)(a); Paul, 444

 9   F.3d at 157.   Ilunga’s failure to demonstrate that the

10   treatment of Tutsis had worsened since the time his first

11   asylum application was denied also rendered him ineligible

12   to file a successive asylum application.   See 8 U.S.C.

13   § 1158(a)(2)(C), (D).

14       For the foregoing reasons, the petition for review is

15   DENIED.   As we have completed our review, any stay of

16   removal that the Court previously granted in this petition

17   is VACATED, and any pending motion for a stay of removal in

18   this petition is DISMISSED as moot.   Any pending request for

19   oral argument in this petition is DENIED in accordance with




                                   5
1   Federal Rule of Appellate Procedure 34(a)(2), and Second

2   Circuit Local Rule 34.1(b).

3
4                                 FOR THE COURT:
5                                 Catherine O’Hagan Wolfe, Clerk
6
7




                                   6
