NIJC - 2nd Cir. holds BIA should have conducted individualized analysis of changed country conditions

2nd Cir. holds BIA should have conducted individualized analysis of changed country conditions

Thursday, 24 July 2008

Passi v. Mukasey (2nd Cir. 07/23/08)

KATZMANN, Kearse, Jacobs (concurring)

The 2nd Cir. granted this PFR where petitioner from the Democratic Republic of Congo was denied asylum by the IJ, and the Board affirmed, stating that conditions in the DRC had changed to the extent that there was no evidence that petitioner would face persecution. The court found that the Board had improperly inferred that the general improvements of conditions in Congo rebutted the presumption of a well-founded fear of future persecution and that the Board ought to have conducted an individualized analysis of whether the changes in Congo were so fundamental that they were sufficient to rebut this presumption.

(more below)

Read opinion here.

The 2nd Circuit noted in its review of the Board's decision that the Board had only cited the 2004 State Department country report. Citing Tian-Yong Chen v. INS, 359 F.3d 121, 130 (2nd Cir. 2004), and Tambadou v. Gonzales, 446 F.3d 298 (2nd Cir. 2006), the court noted that it has instructed immigration courts not to place "excessive reliance" on these reports and that the BIA cannot rey in a conclusory fashion on information in DOS reports about general country changes. The court went on to state that, although the 2004 country report noted significant improvements in conditions in Congo, the report did nto support the Board's inference that those general improvements rebutted the presumption of a well founded fear of persecution for someone in petitioner's situation, a member of the Lari ethnic group who had been branded a supporter of the former president, and whose father had been killed by the current president's militia. Moreover, the court noted that, in petitioner's home region, serious problems still remained.

The court wrote:

"There is no indication from the BIA’s decision that it considered any of this evidence. Of course, Tambadou does not necessarily require the BIA to make particularized, on-record findings whenever it finds a change in country conditions. See, e.g., Hoxhallari v. Gonzales, 468 F.3d 179, 187 (2d Cir. 2006) (per curiam). But here, the BIA improperly inferred that the general improvements in conditions in Congo rebutted the presumption that someone in Passi’s situation—a Lari who had been branded a supporter of former president Lissouba—would continue to have a well founded fear of persecution. Importantly, Passi was from Brazzaville, in the Pool region, where the ongoing ethnic and political violence appears the most severe. Since the agency made no finding that Passi could relocate out of that troubled area, the regulatory presumption that such “internal relocation would not be reasonable” remains unrebutted. See 8 C.F.R. § 208.13(b)(3)(ii). As in Tambadou, it appears that the BIA did not consider the “significant distinction between a drop in abuses and an end to abuses.” 446 F.3d at 304."

Moreover, the court rejected the gvt's argument that Hoxhallari meant that the IJ need not enter specific findings premised on record evidence when making a finding of changed country conditions. While in that case, the court found that the IJ could recognize that “Albania is no longer a Communist tyranny run by a psychopath,” without robotic incantations” for the record, here, " the change in country conditions in Congo was not nearly as dramatic as the fall of the Communist regime in Albania (in fact, the president responsible for Passi’s past persecution is still in power), and there is no indication that Congo is the source of an appreciable proportion of asylum claims such that we could be confident in the agency’s familiarity with the country."

Petition granted, BIA decision vacated, and case remanded.

Chief Judge Jacobs concurred separately to emphasize that Tambadou, though applied appropriately in this case, should not be overread and that the reference to the need for an "individualized analysis" is context specific.

Atty for petitioner: Matthew J. Harris (Eric A. Wuestman, of counsel), Brooklyn, NY

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