This is the case of PASSI v. MUKASEY about immigrant from Republic of Congo seeking asylum in the U.S. from fear of persecution related to Ntumi’s Ninja rebels. Recall previous NinjaLaw post about these ninja rebels: “Asylum sought because of Ninja killers in the Congo“.

The Passi case appears twice at the 2nd Circuit Court of Appeals. First, an unpublished Summary Order from January 29, 2008 before Judges Miner, Cabranes and Sotomayor (yes, that Sotomayor!):

SYLVESTRE PASSI, Petitioner,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL, Respondent.
(Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.)

07-2102-ag NAC
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
261 Fed. Appx. 332; 2008 U.S. App. LEXIS 1920

Both the IJ and the BIA erred by relying exclusively on the United States Department of State country reports in finding that Passi no longer had a reasonable basis to fear persecution if he returned to the Republic of Congo. This Court has instructed immigration courts “not to place excessive reliance” on the Department of State country reports. See Tambadou, 446 F.3d at 302 (quoting Tian-Yong Chang v. INS, 359 F.3d 121, 130 (2d Cir. 2004)). We have also instructed immigration courts to consider evidence that is contrary to country reports and to consider the “particular circumstances of the applicant’s case demonstrated by testimony and other evidence.” Id. Both the IJ and the BIA erred in failing to consider contrary evidence and in failing to consider Passi’s particular circumstances.

These circumstances include the fact that President Sassou-Nguesso — whose militia was responsible for the severe beating of Passi and the murder of Passi’s father, a police officer under the former President Lissouba ? remains in power. Cf. In re O-Z-, 22 I. & N. Dec. 23, 26-27 (B.I.A. 1998). Passi also correctly notes that the 2004 country report, cited by the BIA, states that “[u]ncontrolled and unidentified armed elements remained active in the Pool region [of the Republic of Congo], despite an ongoing demobilization and reintegration program following the March 2003 Peace Accord between the Government and Pasteur Ntumi’s Ninja rebels.” In addition, the reports note that some members of the security forces committed human rights abuses, and although there were some “significant improvements” in the Congolese government’s human rights record, “serious problems remained,” including that security forces were reportedly responsible for “beatings, physical abuse of detainees, rapes,” and “arbitrary arrest and detention.” Moreover, news articles submitted by Passi describe the deaths of civilians by a resurgent militia in a suburb of Brazzaville, the displacement of 50,000 people in the capital, and clashes between government troops and rebel fighters in the Pool region surrounding Brazzaville, as well as within the capital itself. The agency was required to conduct a more “individualized analysis” of how any changes in Congo would affect Passi’s personal circumstances. See Tambadou, 446 F.3d at 303.

Then a published supplemental opinion, July 23, 2008, before Judges Jacobs, Kearse and Katzman: ,


SYLVESTRE PASSI, Petitioner,
v.
MICHAEL B. MUKASEY, Attorney General, Respondent.
(Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Michael B. Mukasey is automatically substituted for former Attorney General Alberto R. Gonzales as the respondent in this case.)

Docket No. 07-2102-ag
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
535 F.3d 98; 2008 U.S. App. LEXIS 15481

Opinion by Judge Katzmann:

notably, the 2004 country report confirms that Sassou-Nguesso–whose Cobra militia beat Passi into unconsciousness and killed his father–is now firmly in control of Congo and his “[g]overnment’s human rights record remains poor.” The report noted that although there were “some” improvements, “serious problems remained,” particularly in Passi’s home region where there are continued clashes between the mainly Lari “Ninja” rebels and Sassou-Nguesso’s government forces. The 2004 country report stated that “[u]ncontrolled and unidentified armed elements remain active in the Pool region, despite an ongoing demobilization and reintegration program following the March 2003 Peace Accord between the Government and [the] Ninja rebels,” and noted continued violence and harassment by either “uncontrolled government security forces or former Ninjas.” In December 2003, uncontrolled Republican Guard government forces attacked Ninja elements in Brazzaville resulting in restrictions on civilian movement, and there was “renewed harassment and intimidation by uncontrolled and unidentified armed elements.” While there were fewer reports that government forces killed civilians in the Pool region than in previous years, the 2004 country report stated that members of the security forces “committed human rights abuses” and were “responsible for beatings, physical abuse of detainees, rapes, arbitrary arrest and detention, looting, solicitation of bribes and theft.” The report also noted that “[d]iscrimination on the basis of ethnic regions remained a problem.” The news articles Passi submitted describe the deaths of civilians at the hands of either the military or a resurgent militia in a suburb of his home city Brazzaville, the displacement of 50,000 people in Brazzaville, and clashes between government troops and rebel fighters in Brazzaville and in the Pool region surrounding the city.

Therefore the case was remanded for further proceedings:

The BIA improperly inferred that Passi no longer has a well founded fear of persecution because its inference was based entirely on a country report that details general improvements, while indicating that Passi’s hometown (which the agency was required by regulation to presume is unreasonable for him to leave) is still troubled by ethnic and political conflict. We remand for the agency to conduct an individualized analysis of whether the changes in conditions in Congo were so fundamental that they are sufficient to rebut the presumption that Passi’s fear of persecution is well founded.

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