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Mitondo v. Mukasey

April 24, 2008


Petition for Review of an Order of the Board of Immigration Appeals.

The opinion of the court was delivered by: Easterbrook, Chief Judge.


Before EASTERBROOK, Chief Judge, and COFFEY and MANION, Circuit Judges.

Mpoyi Mitondo, a citizen of the Democratic Republic of the Congo (known as Zaire between 1971 and 1997), arrived in the United States from Scotland bearing a French passport. Citizens of France do not need visas to enter the United States, and Mitondo did not have one.

Only cursory checks are made of persons who carry the passports of nations participating in the visa-waiver program. But one of the checks is for the passport's legitimacy, and Mitondo was detained because a blank bearing the number of the passport he presented had been stolen. He soon confessed that the passport was not his, and that he is not French. His request to stay in the United States has been processed under the "asylum-only" approach applicable to those who claim entitlement to enter without visas. Before arriving, Mitondo had waived any ground other than asylum for remaining in the United States beyond 90 days. See 8 U.S.C. §1187(b)(2); 8 C.F.R. §217.4(a)(1).

Mitondo contends that he has been persecuted on account of his politics. He supports the Union for Democracy and Social Progress (Union pour la Démocratie et le Progrès Social, or UDPS), which is on the outs with the ruling People's Party for Reconstruction and Democracy. UDPS is a recognized party with representatives in the legislature, and its leader Étienne Tshisekedi wa Mulumba served three stints as Prime Minister. But supporters of the UDPS sometimes receive rough handling from the police during political demonstrations. Mitondo testified that he endured ghastly treatment during May 2005, after Joseph Kabila, Congo's President, postponed scheduled elections. The UDPS called a general strike, and Mitondo says that during a demonstration in MbujiMayi he was arrested, thrown into a filthy cell where his hands were tied behind his back and a hood kept over his head, beaten four times, and then sent to the fields for forced labor-from which he escaped after two weeks. Mitondo met Roman Catholic priests who helped him to escape to Zambia, where a second group of priests provided him with tickets and (false) documentation that enabled him to reach Glasgow, receive the stolen passport, and enter the United States equipped with a voucher for prepaid stay at a youth hostel in Chicago.

The immigration judge accepted Mitondo's claim to membership in the UDPS (a claim backed up by the party's records and affidavits from its officials) but was skeptical about the story of his detention and beatings in May 2005. The voucher had been issued in Glasgow to a "V. Mitondo," the same name on the passport, before Mitondo had escaped from his captors and thus before he could have met the priests-about whom he has supplied no details. Asked to explain how this could be so, Mitondo replied: "I don't know how they arranged these travel documents or how they arranged any, any of this."

After a six-week continuation so that both sides could gather additional evidence, Mitondo's memory improved. Now he testified that the person in Glasgow who gave him the documents told him that a Vital Mitondo had planned to travel to the United States but had backed out. Mpoyi's photograph then replaced Vital's on the passport, and Mpoyi claimed to be Vital in order to use the voucher. The IJ was skeptical of this story and continued the hearing to allow forensic examination of the passport. An expert concluded that the document was "free from any conclusive physical evidence indicating data entry alteration, page substitution, or photo-substitution." In other words, Mpoyi's photo was the first to have been placed on the stolen blank. Mitondo had no explanation for this, which demolished his revised story.

The IJ then denied Mitondo's application for asylum, finding that he was willing to lie to enter the United States-Mitondo concedes as much in light of the bogus claim of French citizenship-and had lied about the events of May 2005 in particular. Cf. Alsagladi v. Gonzales, 450 F.3d 700 (7th Cir. 2006) (fraud in obtaining entry to the United States is a good reason to reject a request for asylum). The IJ relied on three particular discrepancies: First, the hostel voucher was issued before Mitondo claims to have met the priests; second, Mitondo's testimony that he took over travel documents from someone else is inconsistent with his earlier sworn statement that he had no idea how the documentation was arranged; third, the forensic evidence undercut Mitondo's second story about how his surname and picture came to be on the stolen passport. The Board of Immigration Appeals affirmed.

Jurisdiction is the first question. Because Mitondo was placed in asylum-only proceedings following his failed effort to enter the United States, no formal order of removal has been entered. A court of appeals reviews final orders of removal, 8 U.S.C. §1252(a)(1), but, for reasons given in Jiménez Viracacha v. Mukasey, No. 07-1548 (7th Cir. Mar. 3, 2008), an order that is proper only if the alien is removable implies an order of removal. At least three other courts of appeals have reached the same conclusion and have held that there is jurisdiction to review the final disposition of an asylum-only proceeding. See Shehu v. Attorney General, 482 F.3d 652, 656 (3d Cir. 2007); Kanacevic v. INS, 448 F.3d 129, 134--35 (2d Cir. 2006); Nreka v. Attorney General, 408 F.3d 1361, 1366--67 (11th Cir. 2005).

Mitondo's principal argument is that the agency's decision is not supported by substantial evidence, because the problems that the IJ identified do not "go to the heart of" his claim for asylum. Many decisions, in this and other circuits, state that inconsistencies on minor details do not justify disbelief of an alien's claim to have suffered persecution. See, e.g., Giday v. Gonzales, 434 F.3d 543, 551--52 (7th Cir. 2006). Mitondo observes that none of the IJ's reasons concerns the events that (he maintains) occurred in Mbuji-Mayi in May 2005. Some other evidence in the record suggests that a crackdown on UDPS members began in June 2005, and the documents that Mitondo presented to establish his membership in the UDPS do not show his presence in Mbuji-Mayi during May 2005 (though they do establish his activities on behalf of the party in earlier months). But the IJ did not mention these problems and so, Mitondo maintains, the judiciary can't rely on them either. See SEC v. Chenery Corp., 318 U.S. 80, 88--89 (1943); SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).

Dissatisfied with judicial reluctance to accept immigration judges' credibility decisions, Congress enacted this provision in 2005 as part of the Real ID Act:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements (whenever made and whether or not under oath, and considering the circumstances under which the statements were made), the internal consistency of each such statement, the consistency of such statements with other evidence of record (including the reports of the Department of State on country conditions), and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor. There is no presumption of credibility, however, if no adverse credibility determination is explicitly made, the applicant or witness shall have a rebuttable presumption of credibility on appeal.

8 U.S.C. ยง1158(b)(1)(B)(iii). This subsection applies only to claims for asylum made after May 11, 2005, see 119 Stat. 230, 305 (2005), and Mitondo's application is the first time ...

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