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Nsimba v. Att’y Gen.

3rd Circuit

December 22, 2021

The Third Circuit reversed a decision of the Board of Immigration Appeals which had affirmed an immigration judge’s denial of the petitioner’s application for asylum. In affirming that decision, the BIA misapplied and misinterpreted controlling precedent and imposed requirements on those seeking relief that would require petitioners to first endure torture or arrest. In his native Congo, the petitioner founded a social and political group that was opposed to the current Congolese President. Eventually, the man who co-founded the group with him was arrested, and the police also came for the petitioner. He fled and, while at the airport to leave for America, a member of customs warned him “never plan to return to Congo.” The Third Circuit noted the deplorable humanitarian conditions in Congo and the regular abuse inflicted on those who voice opposition to political leaders. The Court then noted that the BIA concluded that someone in petitioner’s situation could not have an objectively reasonable fear of persecution if returned to the Congo. According to the Third Circuit, the BIA attempted to explain its bizarre conclusion by cherry-picking evidence rather than viewing the entirety of the record, and also by conjecture that minimized the threat the petitioner was under by using unsupported assumptions to minimize the importance of the documents police tried to serve on him. The Court noted that evidence of physical harm was not required to establish fear of future persecution. The Court held that the record compelled a finding that the risks the petitioner faced upon return to the Congo were sufficient to give rise to an objectively reasonable fear of future persecution.

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