In late 2010, the 8th Circuit Court of Appeals remanded (for a second time) the political asylum petition of alien, Noel Malonga. Malonga is a Lari from the Pool region of Congo and alleges persecution if he were returned to his country.
UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT
621 F.3d 757
Submitted, January 14, 2010
Filed, September 14, 2010
Before MELLOY, SMITH, and COLLOTON, Circuit Judges. COLLOTON, Circuit Judge, dissenting.
OPINION by MELLOY:
Noel Malonga, a native and citizen of the Republic of the Congo (“the Congo”), petitions for review of an order of the Board of Immigration Appeals (“BIA”) denying withholding of removal. He claims past persecution and a clear probability of persecution upon return on account of his ethnicity and political opinion. We grant the petition for review and remand for reconsideration of whether he faces a clear probability of persecution based on political opinion.
In Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) (“Malonga I”), we described the basic facts of this case. We now revisit
Interestingly in Malonga I, the court does not use the word Ninja to explain Malonga’s claims. Here, revisiting, the Court uses the word six times (five in facts and ones in analysis):
Situation in the Congo
The record paints the Congo as a country dominated by a series of totalitarian regimes punctuated, particularly in recent years, by violent conflict. In 1968, Marien Ngouabi led a military coup and held the presidency until his assassination in 1977. In 1979, Denis Sassou-Nguesso became president, which according to State Department reports, launched two decades of turbulent, single-party politics “bolstered by Marxist-Leninist rhetoric.” Sassou-Nguesso is a northerner of Mbochi ethnicity.
In the 1990s, the country ostensibly transitioned to a multiparty democracy, but political stability remained elusive. Numerous opposition political parties were formed at the time, including the Mouvement Congolaise pour la Democratie et le Development Integral (Congolese Mouvement for Democracy and Integral Development, hereinafter “MCDDI”). In 1992, southerner Pascal Lissouba was elected president. Violent civil unrest subsequently broke out in June and November 1993 over the results of hotly disputed legislative elections. Risk of large-scale insurrection subsided after the parties accepted the decision of an international board of arbiters in February 1994. Lissouba attempted to eliminate Sassou-Nguesso’s political-military faction as the country headed for a new round of elections in 1997, igniting four months of civil war. Sassou-Nguesso eventually seized the presidency, toppling the Lissouba government.
Fighting between forces loyal to Sassou-Nguesso and several southern rebel groups engulfed the country in 1998. The rebel militias included the Cocoyes, who supported Lissouba, and the Ninjas, who are of mostly Lari ethnicity and were affiliated with Bernard Kolelas, [Footnote #1: Kolelas served as Prime Minister for the final months of the Lissouba regime.] the founder of the MCDDI. The conflicts were largely concentrated in the south, including the Pool region surrounding the capital of Brazzaville.
Civilians found themselves caught in the crossfire, subjected to both indiscriminate violence and instances of deliberate brutality by all factions. Undisciplined troops and security forces associated with the government reportedly detained, beat, raped, “disappeared,” and killed civilians, arbitrarily searched homes, and engaged in widespread looting. Government allied-forces were also known to single out individuals, mostly southern men, for arrest and even death on suspicion that they supported the Ninjas or the Cocoyes. The record paints the rebels as little better. Militias, particularly the Ninjas and other groups based in the southern Pool region, executed civilians thought to back the government based on their ethnicity. The militias of the Lari ethnic group reportedly looted property, raped women, and killed civilians, even members of their own ethnicity. In all, the war left nearly a third of the population displaced and thousands dead.
The Sassou-Nguesso government signed a cease fire with most rebel groups in late 1999, leading to a measure of calm. For example, the State Department observed in its 2001 country conditions report that it had received no accounts of government violence toward southern ethnic groups in the previous year and that politically motivated disappearances and killings also ceased. Lissouba and Kolelas themselves were effectively forced into exile and tried in absentia for war crimes.
State Department country conditions reports and other articles in the record acknowledge the 1997-1999 conflicts exhibited ethnic overtones, and other courts have recognized many of the recent conflicts to be ethno-political in nature. See Passi v. Mukasey, 535 F.3d 98, 102-03 (2d Cir. 2008) (noting, for example, that Brazzaville and the Pool region exhibited what appeared to be some of the most severe ethnic and political violence); Mapouya v. Gonzales, 487 F.3d 396, 402 (6th Cir. 2007) (“Strong ethnic overtones are present in Congolese politics, and the 1997-1998 civil war was no different.”). Documentary evidence suggests that political and the most significant inter-ethnic tension has split roughly along geographical lines, pitting northerners against the more prosperous southerners. State Department reports, however, also caution against oversimplifying the unrest, and politics more generally, as north versus south. Each leader–Sassou-Nugesso, Lissouba, and Kolelas–has drawn heavy support from his own ethnic group in his immediate entourage. Nevertheless, the reports advise that the correspondence between “ethnic-regional and political cleavages” was inexact and only approximate, and that actual support of the current and recent governments “included persons from a broad range of ethnic and regional backgrounds.”
In 2002, the latest year represented in the record, media reports documented renewed conflict in southern Congo between government forces and the Ninjas following Sassou-Nguesso’s reelection. The Ninjas attacked government military posts in the Pool region, allegedly responding to government plots to arrest the militia’s leader. Civilians were once again swept up in the fighting and suffered abuses by both sides, though particularly by the government, including killings, rapes, abductions, looting, and other destruction of property.
And in analysis:
the BIA failed to include political dissidents in its pattern and practice analysis. The BIA simply held that the Lari did not face such a pattern and practice. We understand Malonga to argue that this analysis is insufficient for two reasons. First, it fails to account for the fact that he has been an actual political dissident, who, he claims, the record demonstrates face a substantial risk of persecution. Second, he argues that he runs a separate risk of having a political opinion imputed to him because he is a Lari from the Pool region, whose residents are often assumed to oppose the government. Regarding the latter, Malonga points, for example, to the fact that during the 1998-1999 conflicts, police executed five men whose identity cards indicated they came from the Pool and were assumed to be members of the southern-based Ninjas or Cocoyes militias. He also draws our attention to a 1999 letter from his brother recounting reports that men of “fighting age” in the Pool were being summarily executed.
For the reasons stated above, we grant the petition for review, vacate the BIAs’ holdings regarding a clear probability future persecution on account of political opinion, and remand for proceedings consistent with this opinion. The BIA should consider Malonga’s current political activities and affiliations would cause him to be singled out for persecution. It should also consider whether a pattern and practice of persecution exists as to actual and imputed political dissidents, and whether Malonga as a Lari from the Pool who has been an active political opponent of several regimes, is similarly situated to those individuals. On remand, the BIA is free to supplement the record with more current materials regarding country conditions in the Congo.
The dissent by Circuit Judge Colloton does not refer to the Ninjas by name. The dissent does refer to the “ethno-political” nature of this claim and suggests that the Majority opinion is imposing a duty on the Board of Immigration Appeals to “write an exegesis on every contention” citing Averianova v. Holder, 592 F.3d 931, 936 (8th Cir. 2010) (but notice in Averianova the quote is cited to Barragan-Verduzco v. INS, 777 F.2d 424, 426 (8th Cir.1985) as a quoted from Osuchukwu v. INS, 744 F.2d 1136, 1142 (5th Cir.1985) – note: Osuchukwu is actually a 1984 opinion but in fact the quote is there, from Judge Alvin Rubin: “no duty to write an exegesis on every contention” in a case about
An alien who was ordered deported four years ago when his citizen wife was expecting their first child seeks to avoid return to his native country on the ground that deportation would cause extreme hardship to his wife, the child, and to another child whom his wife was expecting by the time we heard the appeal.
Not exactly a case on all fours with Malonga’s Lari Pool Ninjas – but still a great quote. (incidentally, Barragan-Verduzco is also a citizen child and economic hardship; Averianova is about a woman from Uzbekistan with “vague, inconsistent, and unbelievable”:
Averianova also claimed that her family was continually harassed and threatened for being Jewish. She submitted no evidence to corroborate these claims.
This is Judge Colloton’s implication about similar qualities in Malonga’s claims.