                                                                             United States Court of Appeals
                                                                                      Fifth Circuit
                                                                                    F I L E D
                    IN THE UNITED STATES COURT OF APPEALS
                                                                                   January 11, 2006
                                 FOR THE FIFTH CIRCUIT                          Charles R. Fulbruge III
                                                                                        Clerk


                                        No. 04-60905
                                      Summary Calendar



       MARTHE BENYI KABAMBA, EDO JOEL LUSAMBA KABAMBA, BENY
       CATHY MARLENE KABAMBA, JULES NGOLE KABAMBA, and
       CHRISTAIN TENDAYI KABAMBA

                                                           Petitioners,

                                             versus

       ALBERTO R. GONZALES, UNITED STATES ATTORNEY GENERAL

                                                           Respondent.


                  PETITION FOR REVIEW OF AN ORDER OF THE
                       BOARD OF IMMIGRATION APPEALS
           _________________________________________________________


Before REAVLEY, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

       Petitioners, an ethnic Tutsi mother and her four children who are natives and

citizens of the Democratic Republic of the Congo (“DRC”), petition for review of an

order of the Board of Immigration Appeals (“BIA”) denying their application for asylum,


       *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
withholding of removal, and protection under the Convention Against Torture. Because

the credibility determination of the Immigration Judge (“IJ”) is not supported by the

record, we grant the petition and remand to the BIA for further consideration.

       1.     When, as in this case, the BIA affirms without opinion the IJ’s decision,

              this Court reviews the IJ’s decision. Soadjede v. Ashcroft, 324 F.3d 830,

              831-32 (5th Cir. 2003). We use the substantial evidence standard to review

              the IJ's factual conclusion that an alien is not eligible for asylum,

              withholding of removal, and relief under the Convention Against Torture.

              Zhang v. Gonzales, ___ F.3d ___, 2005 WL 3214455, at *2 (5th Cir. Dec.

              1, 2005). The agency's findings of fact are conclusive unless any

              reasonable adjudicator would be compelled to conclude to the contrary. Id.

              (citing 8 U.S.C. § 1252(b)(4)(B) and INS v. Elias-Zacarias, 502 U.S. 478,

              481, 112 S.Ct. 812, 815 (1992)). Under this standard, reversal is improper

              unless we decide "not only that the evidence supports a contrary

              conclusion, but also that the evidence compels it.” Zhao v. Gonzales, 404

              F.3d 295, 306 (5th Cir. 2005) (quoting Chun v. INS, 40 F.3d 76, 78 (5th

              Cir.1994)).

                     "[I]t is the factfinder's duty to make determinations based on the

              credibility of the witnesses." Id.; see also Mantell v. INS, 798 F.2d 124,

              127 (5th Cir. 1986) ("We will not review decisions turning purely on the

              immigration judge's assessment of the alien petitioner's credibility.").

                                              2
            However, we agree with the Ninth Circuit that an IJ’s conclusion

     that a petitioner is not credible may not be accepted “blindly.” Aguilera-

     Costa v. INS, 914 F.2d 1375, 1381 (9th Cir. 1990). An adverse credibility

     determination still must be supported by specific and cogent reasons

     derived from the record. Zhang, ___ F.3d ___, 2005 WL 3214455, at *2

     (citations committed). In this case, we conclude that the IJ’s credibility

     determination regarding lead petitioner, Marthe Kabamba, is not supported

     by substantial evidence in the record.

2.   Mrs. Kabamba testified that her husband served in the former Mobutu

     government for a period of years preceding the ascension of President

     Laurent Kabila. Mrs. Kabamba stated that, at the hands of the Laurent

     Kabila regime, she and her husband were robbed, beaten and tortured, that

     her brother-in-law was killed and her sister-in-law raped, and that she

     herself was also brutally raped, requiring hospitalization for an extended

     period of time.

            Mrs. Kabamba also testified that she was incarcerated, interrogated,

     and beaten at least twice following the assassination of Laurent Kabila and

     ascension to power of his son, Joseph Kabila, in 2001, the latter beating

     incident resulting again in a documented hospitalization for Mrs. Kabamba.

     She has not seen her husband since she was released from the hospital and

     does not know his whereabouts. Witness testimony corroborated these

                                    3
              atrocities against the Kabamba family as commonly-known and widely

              publicized at the time. As the IJ acknowledged, Mrs. Kabamba’s testimony

              regarding these incidents has remained internally consistent throughout the

              application process. The IJ, who raised no question of veracity based on

              Mrs. Kabamba’s demeanor,1 discounts her credibility on three bases:

       3.     First, the IJ focused on the fact that Mrs. Kabamba used the address of her

              old family home on her application for asylum, but testified that she spent a

              period of around eighteen months moving from house to house of friends

              after the initial incident of violence in 1997, and that she spent five or six

              months living with various friends after the second incident of violence in

              2001. Mrs. Kabamba explains that she did not know the specific addresses

              of the various friends with whom she had stayed during fearful periods and

              considered the old family home the appropriate address for application

              purposes. Further, her application also mentions that she was forced to

              abandon her home and live clandestinely with friends on the same two

              occasions to which she testified at the hearing.

                     The BIA has stated that it will generally defer to an IJ’s adverse

              credibility finding based on inconsistencies regarding events central to an



       1
         The First Circuit has held that credibility findings of an IJ that rest on analysis of
testimony rather than on demeanor may deserve less than usual deference. Cordero-Trejo
v. INS, 40 F.3d 482, 487 (1st Cir. 1994).

                                              4
alien’s asylum claim if the record reveals that (1) the discrepancies and

omissions described by the IJ are actually present in the record; (2) such

discrepancies and omissions provide specific and cogent reasons to

conclude that the alien has provided incredible testimony; and (3) the alien

has failed to provide a convincing explanation for the discrepancies and

omissions. In re S-A-, Interim Decision 3433 (BIA June 27, 2000). The

inconsistency perceived by the IJ related to the address listed on the

application does not go to the heart of the Kabamba’s claim. When asked to

proved an explanation for the seeming inconsistency, Mrs. Kabamba did so.

The fact that Mrs. Kabamba offered her old family home as her official

address, but explained in both her testimony and in her application that she

was, at times, living in different locations does not constitute the kind of

inconsistency that could be considered so cogent as to justify an adverse

credibility finding.

       The IJ placed additional emphasis on the perceived inconsistency

regarding the family residence based on the testimony of Mrs. Kabamba’s

oldest son Alain (also known as Elan). However, Alain Kabamba, who’s

testimony was marred by evasive answers and a lack of respect for the

proceedings, was himself deemed incredible by the IJ and the Government.

The IJ selected as credible the lone contradictory statement that Alain made

regarding his mother’s testimony as to her continued residence in the family

                                5
             home during a relevant period. By both the IJ’s and the Government’s own

             measure, the testimony of Alain Kabamba lacked sufficient indicia of

             reliability to draw an adverse credibility finding. The IJ’s use of Alain’s

             testimony to impeach Mrs. Kabamba’s credibility is not supported by the

             record.2

      4.     Second, the IJ complained that the non-testimonial evidence provided by

             Mrs. Kabamba relating to her husband’s precise position in the Mobutu

             regime was scant. Mrs. Kabamba provided (a) a presidential order signed

             by President Mobutu, appointing the members of his cabinet and listing Mr.

             Kabamba as “Minister of Decentralization,” (b) a BBC article discussing

             the above-referenced cabinet appointments and mentioning Mr. Kabamba

             by name as “Minister of Decentralisation,” (c) a certificate issued to Mr.

             Kabamba following successful conclusion of a political training program

             during the Mobutu regime, and (d) various photos of Mr. Kabamba with

             President Mobutu, either alone or with other government officials. Mrs.

             Kabamba also provided the testimony of two witnesses living in the United

             States, who corroborated her claim that Mr. Kabamba was well-known in



      2
        We note that Alain Kabamba has already been granted asylum in a prior
proceeding, apparently on facts much less compelling than those his mother presents
here. Despite the IJ’s open disdain for that decision, it cannot be altered in this
proceeding and should not prejudice the current petitioners.


                                            6
             Kinshasa as a ranking member of the deposed Mobutu regime. The IJ did

             not specify what additional documentation would have satisfied him.

                    The BIA has held that corroborating documentary evidence, although

             not essential to establish a claim, 8 C.F.R. 208.13(a), should be produced

             where it its reasonable to expect it or an explanation should be produced as

             to why it was not presented. Matter of S-M-J, 21 I&N Dec. 722, 725-26

             (BIA 1997).3 The Third Circuit has held 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 or residence “constitutes one small, but crucial,

             defense against potentially mistaken, culturally based assumptions about the

             existence and availability of documents.” Mulanga v. Ashcroft, 349 F.3d

             123, 134 (3d Cir. 2003) (reviewing denial of asylum to a native and citizen

             of the Congo).

                    Mrs. Kabamba testified that her husband served in a now-deposed


      3
         See also Alvarado-Carillo v. INS, 251 F.3d 44, 53-55 (2d Cir. 2001) (reversing
BIA denial of asylum where generalized information that was submitted provided support
for claim and where the BIA failed to identify any particular document or type of
document it believed was missing); Guo v. Ashcroft, 361 F.3d 1194, 1200-02 (9th Cir.
2004) (holding that, when applicant’s credibility is in question, corroborative evidence
should be produced but only where it is “easily available” and that it is inappropriate to
make an adverse credibility finding for failure to produce affidavits from relatives or
acquaintances living outside the United States); Unase v. Ashcroft, 349 F.3d 1039, 1043-
45 (7th Cir. 2003) (reversing denial of asylum where undue weight was given to lack of
corroborating testimony).

                                            7
     regime. She testified that she was forcibly taken from her home by

     government agents and that her home was ransacked by military forces

     and abandoned for a long period of time, during which additional political

     upheaval ensued. Mrs. Kabamba has been in the United States since 2002.

     Given the circumstances, it is quite reasonable that it became difficult for

     her, or for anyone on her behalf, to find relevant governmental

     documentation beyond that which she supplied. Additionally, imputed

     political affiliation is only one basis for Mrs. Kabamba’s fear of future

     persecution – she and her children are also ethnic Tutsi who, as the record

     reflects, remained at risk in the DRC at the time of the hearing. Given the

     country conditions and the particular circumstances, it is unreasonable to

     require Mrs. Kabamba to provide further corroborating documentation of

     her husband’s political party affiliation. The IJ’s adverse credibility

     determination based upon lack of additional unspecified and difficult-to-

     obtain corroborative documents was not supported by substantial evidence.

4.   Third, the IJ found troublesome the fact that, after the initial attack in 1997,

     Mrs. Kabamba returned to the Congo on more than one occasion after trips

     to the United States. The IJ noted that Mrs. Kabamba was able to get her

     passport renewed, secure exit visas, and, “with apparently relative

     freedom,” leave the country in spite of her persecution by government

     officials. The IJ was also apparently troubled because he found it

                                     8
improbable that she would leave her children in the United States while

traveling back to the DRC.

       Mrs. Kabamba asserts that she was deeply attached to her country

— she had no job in the United States and spoke no English — and that she

was hopeful in her belief in the assurances of the second Kabila regime that

change toward supporters of the Mobutu regime and toward ethnic Tutsis

was forthcoming. Upon her realization that nothing was going to change

and that she and her children would not be safe in her native country, she

applied for asylum.

       Apparent inconsistencies in treatment by various government

officials provide an insufficient basis to deny asylum where a person has

suffered persecution at the hands of some such officials. See Matter of

Pula, 19 I&N Dec. 467, 472 (BIA 1987) superceded in non-relevant part by

regulation as stated in Andriasian v. INS, 180 F.3d 1033, 1043-44 (9th Cir.

1999), see also Popova v. INS, 273 F.3d 1251, 1258-59 (9th Cir. 2001)

(holding that because a person was allowed to work for the government and

to travel does not mean she was not persecuted); Lopez-Galarza v. INS, 99

F.3d 954 (9th Cir. 1996) (holding that, where applicant was released after

being raped and abused in prison, evidence that someone was persecuted

and released cannot be used to infer that the person does not have a well-

founded fear of persecution).

                                9
       In this case, Mrs. Kabamba consistently testified that the reason she

returned to the DRC after previous trips to the United States was because

there were governmental promises and hope of change. She consistently

testified that she believed the animosity toward members of the former

government and the Tutsi tribe was incidental to the overthrowing of the

Mobutu regime, but not the result of ongoing governmental policy. She

initially trusted the new government’s public declarations of its

commitment to the democratization of the DRC and was convinced that

things would get better after the new government firmly took control of all

administrative sectors. Mrs. Kabamba also testified that she considered her

children to be safer in the United States during her failed attempts to

resettle in the DRC as the regimes in power changed.

       Mrs. Kabamba’s testimony that citizens of the DRC were hopeful of

change under the second Kabila regime but were disappointed in that regard

is consistent with the record evidence. There is documentary evidence in

the record that the government that overthrew the Mobutu government was

claiming political tolerance towards former Mobutu collaborators. The

documentary evidence also reflects that Joseph Kabila, who inherited

autocratic powers from his father Laurent Kabila, promised human rights

reforms several times after his ascension to power but delivered relatively

little on that front, with violence against ethnic groups and women

                               10
     continuing. See also Mulanga, 349 F.3d at 130 (wherein petitioner seeking

     asylum from the DRC testified that “it’s the same thing, father and son”).

     Thus, as the record reflects and the IJ acknowledged, despite efforts and

     promises, matters have not improved in the Congo for collaborators of

     deposed regimes nor for ethnic Tutsis or women.

            In short, in view of the well-documented governmental assurances of

     tolerance and change that ultimately did not materialize, the fact that Mrs.

     Kabamba initially failed to appreciate the continued danger of remaining in

     her country of origin does not belie her current well-founded fear that she

     and her children will face further persecution if returned to the DRC.

5.   The petition for review is granted. As the IJ expressly acknowledged, Mrs.

     Kabamba’s testimony, if believed, establishes a well-founded fear of

     persecution based on her status as an ethnic Tutsi whose husband served in

     the former Mobutu regime. INA § 101(1)(42), Elias-Zacarias, 52 U.S. at

     482. The IJ erred in discrediting aspects of Mrs. Kabamba’s account of

     persecution on the basis of unreliable testimony and misperceived

     inconsistencies. The IJ’s expressions of improbability and implausability

     do not give rise to any specific and cogent reasons to disbelieve Mrs.

     Kabamba’s testimony supporting her claim. The IJ’s credibility

     determination was not, therefore, supported by substantial evidence.

            When an appellate court has held that an IJ’s or BIA’s adverse

                                   11
         credibility finding is not supported by substantial evidence, and the BIA has

         not addressed the merits of a petitioner’s application, the proper procedure

         is to remand the case to the BIA for further consideration in light of the

         ruling that the petitioner is credible. INS v. Ventura, 537 U.S. 12 ,16, 123

         S.Ct. 353, 355 (2002) (holding that “a court of appeals should remand a

         case to an agency for decision of a matter that statutes place primarily in

         agency hands”). We remand to the BIA for further decision consistent with

         the directions of the Supreme Court in Ventura for the determination of

         whether the Kabamba’s petition for asylum or other relief should be

         granted.

PETITION GRANTED, CASE REMANDED.




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