2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# S e nog a v . Att y Ge n U S A P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-1014

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w . v i l l a no va . e du/thir dc ir c uit_2004/988* The Honorable Louis H. Pol lak, Distri ct Judge, United States District Court for the Ea stern Dis trict o f Pe nns ylvan ia, sittin g by d esig natio n. NOT PRECEDE NTIAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT


### No. 03-1014
DANIEL W

ALUSIMB I SENOGA , Petitioner

v. JOHN ASHCROF T, Attorney Gener al of the Un ited States, Respondent

PETI TI ON FOR RE VIE W OF AN ORDER OF THE BOARD OF IMM IGRATION APPEALS Agency No. A76-118-595

Submitte d Under Third Circ uit LAR 34.1(a)

January8, 2004

Be for e: B AR RY , SM ITH , Circuit Judges , and P OLLAK, * Distri ct Judge (Opinion Fi led: Febr

uary 23, 2004 )

OPI NION1 The ex tent of Sen oga’s fathe r’s affiliation with the U PC rem ains unclear. Se noga’s

sister, Penina, testified that their father con tributed mon ey to the UPC . Senoga ’s brother, Nathan, t esti fied that the ir fat her was a “chi ef support er” and a member of the UPC, but neve r held a ny offic ial post.

2 In late 1989, Peni na left Uganda and went to Canada. She r eturned to Uganda in 1991 and hired a n investigator to try t o find out what

had become of her fat

her. The inves tigator w as arre sted, P enina wa s interro gated by soldier s, and she re turned to 2 BA RR Y, Circuit

Judge We are asked to r eview the deci sion of an I mmigrati on Judge (“I J”) t o deny petit ioner Danie l Walusimbi Senoga’s appl ication for as yl um and withholdi ng of removal, and the Board of I mmigrati on Appeals’ ( “BIA”) subsequent decisi on to adopt and a ffirm , witho ut op inion, th e IJ’s d ecision . We find th at the IJ’s adve rse cre dibility determi nation i s not supported bysubstant ial e vidence, and will remand to the BIA for further proceedi ngs in accordance with this opi nion. I. Senoga is a native of Ugand a, born there on May 17, 1975. His father was a wealthylandowner affi liated with the Uganda’s People’ s Congress ( “UPC”), a poli tica l organization oppos ed to the ruli ng partyin Uganda. 1 In 19 86, w hen S enog a w as a ch ild and away at

boarding s chool, soldi ers came t o his fat her’s hous e, accus ed his fat her of plotting to over

throw the government, beat him, cut off his ear , and t ook him away, never to be hear d from again. Thereafter , two of Senoga’s sibl ings l eft Uganda for t he United States and Canada; both returned to Uganda briefl y, but lef t soon thereaft er when haras sed b y the gov ernm ent. 2 Senog a’s three other bro thers remain in U ganda : two areCa nad a, co min g to the U nited Sta tes in 199 4. N atha n ca me to th e U nited Sta tes in 199 0.

He return ed to U gand a in 19 92 an d attem pted to sue th e gov ernm ent fo r con fiscatin g his family ’s proper

ty , but l eft shortly

therea fter when the government har assed and threate ned him and his lawyer.
3 The p arties state in their briefs, and the IJ stated in h is decision, that the w ires were attach ed to S enog a’s ge nitals. Se nog a testified , how ever, th at they w ere attac hed to his hands. 3 belie ved to be i n jail , and the other, Senoga’s hal f-brother, i s a chil d livi ng with other relat ives. Senoga’s mother

remains i n Uganda because the gover nment has taken away her travel documents. On December 20, 1997, sol diers returned to Senoga’s home looking for guns, and inter rogated hi m about rebelmeetings. They ki cked him in t he groin, slapped hi m, and

arres ted him and two of his brothers as s uspected rebel col laborators. While detai ned, Sen oga c laims th at soldie rs bea t him, sh ocke d him with electrica l devic es attac hed to his hands, 3 grasp ed an d hu rt his ge nitals w ith pliers, so dom ized h im w ith a rod , stabbe d him in the l eg, and made hi m sleep on a concr ete fl oor with no matt ress or blanket . They questi oned him repeatedly , and asked hi m to identifyindivi duals who all egedlyatte nded

me eting s in h is ho use , non e of wh om he c oul d id entif y. Sen oga d oes n ot kn ow for h ow long he w as de tained , but w as told it w as thre e to fou r mo nth s. In A pril 1 998 , he w as p ut o n a b us to be tr ans ferr ed to ano ther loca tion
. While en rout e, Senoga cl aims he hear d a loud expl osion at the back of t

he bus, which caused it to overt urn. He los t consci ousness, and when he came to, found hi mself in t he bus, which was off t

he road and i n a wooded area. He cl imbed through a window, and4

had no idea whether

anyone e lse on t

he bus, i ncluding t

he two armed guards, three ot her prisone rs, and driver , was dead or al ive. He walked for about a day untilhe came to a barn , wh ere he fou nd clo thes an d slep t. He th en co ntinue d to w alk un til he cam e to Ua nam agam bo, w here a n acq uainta nce, th e Re veren d W ama la, lived. R evere nd W ama la took Senoga in, and drove him t o Wamala’s parent s’ house, some 80 miles a way, to keep him out of s igh t. Mrs. Wamala nursed Senoga back to health, and Wamala obtai ned a visa f or Senoga to come to t

he United States. Senoga arri ved in the United States on December 1, 199 8. H e claim s that W ama la paid $1,00 0 fo r his pla ne tick et, but h e has no p lans to rep ay him and has not con tacte d hi m f or f ear th at W am ala’s pho ne m igh t be ta ppe d. Senoga’s brot

her, Nathan, cl aims that he made the arr angements for Senoga’s vi sa, and that h e pa id fo r the plan e tick et, bu t did not tell S eno ga th at he had don e so . On De cem ber 3 0, 199 8, Sen oga a pplied for as ylum an d w ithhold ing o f rem oval, recounti ng his ar

rest , torture, and escape, and his fear that he would be arre sted and detai ned if he r eturned to Uganda. On April 13, 1999, the asy lum officer who completed Senoga’s Assess ment to Refer f ound him to be not

credibl e. On April 20, 1999, the Immigration and Natura lization Service (“ INS”) iss ued a Notice t o Appear, char ging that Senoga was removable, pursuant to 8 U.S.C. § 1227(a)( 1)(B), for remai ning in t he United4 There is s ome confusion as to this expirat ion date . The vis a its elf st ates t hat it expires on N ovem ber 1 8, 199 9. Th e N otice to Ap pear s tates tha t Sen oga w as au thorize d to remain i n the Unite d States untilDecember 1, 1998, e ven though that is the same daythat he en ter ed th e c ou nt ry. 5 Although we ordinarily review the BIA’s opinion, we review the I J’s opi nion when the BIA has not ren der ed its ow n op inio n, bu t has inste ad a dop ted th e op inio n of the I J. See, e.g. , Gao v. Ashcroft , 299 F.3d 266, 271 (3d Cir. 200 2). 5 States , without

authori zati on, bey ond the expi rati on of his t emporaryvisa. 4 Senoga conceded removabi lit y, but renewed hi s appli cati on for asy lum and with hold ing o f rem oval. A fter a h earing , the IJ, on De cem ber 2 0, 199 9, den ied his applic ation, accepti ng part of Senoga ’s st ory and discr editi ng part of i t. Senogaappealed to th e B IA , wh ich, o n D ece mb er 3 , 200 2, ad opt ed, w itho ut o pin ion , the I J’s d ecis ion
. Senoga argues t o us that the BIA’s appl ication of the stre amlini ng rule was i nappropri ate, and that t he I J’s a dve rse c red ibility de term inati on w as n ot b ase d on sub stan tial ev iden ce. We have jurisdictio n to rev iew th e fina l order of rem oval, 8 U.S .C. § 1 252 (a); in this case, we re view the IJ ’s deci sion. 5 See Mulanga v. Ashcroft , 349 F.3d 123, 131 (3d Cir. 2003). II. The AttorneyGeneral may , purs uant to 8 U. S.C. § 1158(a) & (b)(1), grant as yl um to an alien if he dete rmin es th at the alien is a “ refu gee ” w ithin the m ean ing of 8 U.S .C. § 1101(a)( 42)(A), whic h defines arefugee as “ any per son who is outs ide anycountryof such person’ s nati onalit y . .. and who is unable or unwilli ng to ret

urn to, and is unabl e or unwilli ng to avai l himsel f or hers elf of the protec tion of, that c ountrybecause of6 Otherw ise, Senoga can dem onstrate that he ha s “‘“a w ell-founded fear of fu ture

persecution by showing that [he] has a genuine fear, and that a reasonable person in [his] circumst ances would fear persecution if returned to [his] native country .”’” Mulanga , 349 F.3d at 132 ( quoting Abdulrahman v. Ashcroft , 330 F.3d 587, 592 (3d Cir. 2003) (ci ting Gao , 299 F .3d at 2 72)); see also 8 C .F.R . § 20 8.13 (b)(2 )(i). 6 pe rse cu tio n o r a w ell -f ou nd ed fe ar of pe rse cu tio n o n a cc ou nt of ra ce , re lig io n, n ati on ali ty,

me mb ersh ip in a pa rticu lar so cial g rou p, or pol itical o pin ion .” To establish eligi bility for asy lum on the basis of past persecution, Senoga must show: “(1) one or more inci dents risi ng to the l evel of per secuti on; (2) that i s ‘on account of’ one of the stat

utori ly -prot ected gr ounds; and ( 3) is c ommitted ei ther bythe government or by

forces t hat the government i s eit her unableor unwill ing to cont rol. ” Mulanga , 349 F.3d at

132 (citing Gao , 299 F.3d at 272). A showing of past persecution gives rise t o a rebutt able pre sumption of a wel l-founded fe ar of future persecut ion. 6 Mulanga , 349 F .3d at 1 32; 8 C.F .R. § 2 08.13 (b)(1). T hat pre sum ption c an be rebu tted if the I NS esta blish es b y a pre pon der anc e of the e vid enc e tha t, inter alia , cond itions in Ug and a ha ve c han ged so a s to m ake Sen oga ’s fe ar n o lo nge r rea son able
. Mulanga , 349 F.3d at 132; 8 C.F.R. § 208.13(b)(1)(i)( A). Whether Seno ga has demonstrated past persecution or a well -founded fear of future pe rsecution is a factualdetermi nation

rev iew ed u nde r the sub stan tial ev iden ce s tand ard
. Mulanga , 349 F.3d at 131 (citing Gao , 299 F .3d at 272). Senoga’s asy lum appli cati on is deemed t o consti tute, at the same time, an applic ation f or w ithhold ing o f rem oval. 8 C.F .R. § 2 08.3( b); Mulanga , 349 F.3 d at 1 32.7

The Atto rney G enera l may no t, pursu ant to 8 U.S .C. § 1 231 (b)(3)(A ), remo ve an alien to a country if he deci des that

“the al ien’s life or freedom would be threate ned in that countrybecause of the ali en’s ra ce, re ligi on, nationali ty , membershi p in a part icular soci al group, or p olitical opinion.” Sen oga m ust show a “clear prob ability” – i.e. that it is more likel y than not – th at his life o r fre edo m w oul d be thre aten ed if he is dep orte d. Mulanga , 349 F.3d at 132. This standard is more exacting than that for asy lum applications; theref ore, i f Senoga fail s to est ablis h a well-f ounded fear of per secuti on for asy lum pur pos es, h is ap plica tion for wit hho ldin g of rem ova l nec essa rily fails
. Id. (citing Zubeda v. Ashcroft , 333 F.3d 463, 469 -70 (3d C ir. 2003)). The burden of proof i s on Senoga to es tabli sh his el igibi lit y for asy lum and for wit hho ldin g of rem ova l. He mu st do so b y mea ns o f cre dib le tes timo ny, Gao , 299 F.3d at 272, and hi s credi bili ty , “byits elf, may satisfyhis burde n, or doom his clai m.” See Dia v. Ashcroft , 353 F.3 d 22 8, 24 7 (3 d C ir. 20 03) (en ban c). Our scope of revi ew in immigration cases is “ext remelynarrow.” Fi ndings of fact are concl usive unl ess anyreasonabl e adjudi cator would be compelled to conclude t o the contrary, 8 U.S.C. § 1252(b) (4)(B), and we review those facts unde r the def erenti al “su bsta ntial evid enc e” s tand ard
. Gao , 299 F .3d at 2 72; see also Ahmed v. Ashcroft , 341 F.3d 214 , 216 ( 3d C ir. 2003 ); Awolesi v. Ashcrof t , 341 F.3 d 22 7, 23 1 (3 d C ir. 20 03)
. “‘We will uphol d the fi ndings of the BIA to the ext ent that they are supported by reasonabl e, subs tanti al and probative e vidence on the record c onsider ed as a whole, and8

will rev erse th ose f inding s only if the re is ev idenc e so c om pelling that no reaso nable factfi nder could c onclude as t he BIA did.’” Mulanga , 349 F.3d at 131 (quoti ng Kayembe v. Ashcroft , 334 F.3d 231, 234 (3d Cir. 2003) (ci ting Gao , 299 F .3d at 2 72)); see also Tarrawall y v. Ashcroft , 338 F.3 d 18 0, 18 4 (3 d C ir. 20 03)
. Adverse credi bili ty determi nations are fi ndings of fact , and must a lso be bas ed on sub stan tial ev iden ce. Dia , 353 F.3d at 247- 48. If bas ed on speculation or conjecture, rath er th an o n ev iden ce in the r eco rd, th ese dete rmin ation s are rev ersib le. Gao , 299 F.3d at 272. Minor inconsi stenci es willnot support an adverse c redibi lit

y determination; inco nsis tenc ies th at inv olv e the “he art” o f the app lican t’s ca se w ill. Gao , 299 F. 3d at 272 . In su m,
we mu st ask w hethe r the de termin ation is s upp orted b y eviden ce tha t a reaso nable mind wo uld fin d ade quate . We look at an a dver se cred ibility determi nation to ensure that it was appropri atel y bas ed on inconsi stent sta tem en ts, co nt ra di cto ry e vi de nc es , an d i nh er en tly im pr ob ab le t es tim on y . . . in v iew of th e ba ckg rou nd e vid enc e on cou ntry co ndi tion s . . . . Wh ere an IJ b as es an ad ve rse cr ed ib ilit y de ter m in ati on in pa rt o n “ im pl au sib ilit y” as the IJ did here , such a con clusion w ill be properly grounde d in the record only if i t is made against the background of the general country condit ions. Dia , 353 F.3d at

249 (int ernal quot ations omitt ed). Alt hough we defer to the IJ on credibi lit y ques tions , “‘[d] eference i s not due where fi ndings and conclusions are based on infere nces or pr esumptions that are not r easonably grounded in t

he record. ’” Id. (quoti ng El Moraghy v. Ashcroft , 331 F.3d 195, 205 (1st Cir. 2003 )). Th e I J c on clu de d t ha t S en og a h ad no t sh ow n t ha t th er e is a r ea so na bl e p ro ba bi lity, much less a clear proba bility , of persecu tion, because h e did not be lieve part of S enoga ’s7 The 199 9 and 200 0 cou ntry repo rts we re sub mitted only to the BIA on ap peal.
8 Although the c ountryprofil e, publ ished i n August 1997, concl uded that fear for personalsafety

based on poli tica l opini on seems based on past events, that profile was publis hed before Senoga’ s arre st i n December 1997, and subse quent tor ture. 9 story. For e xam ple, the I J ded uced from the 19 98 U nited S tates D epartm ent of State Country Report on Human Rights Prac tice s in Uganda (publ ished i n 1999), t he Uganda Country Profil e for Asylum Adjudicator s (publi shed in August 1997) , and the testimony of the w itnesses that cond itions in Uga nda stabilized su bseque nt to the arrest of S enoga ’s father , and that, given the intervening y ears, there i s no longer interest i n harming Senoga’s famil y. In thi s connecti on, he observed that , al though the Ugandan government has alr eady e xtracted large amounts of land from Senoga’s fami ly , the familysti ll owns its house and enough la nd to support the mother . The IJ found i t impl ausibl e that the Ug anda n go vern men t wo uld n ot sim ply conf iscate th is land if it wish ed to c ontinu e to ha rm Se no ga ’s f am ily. But the IJdid not come t o this conclusi on “against the backgr ound of the gener al country conditi ons,” as Dia requir es, and par ticul arlythe ongoing human rights situation in U gand a. Th e 199 7 C oun try Profile, a nd 1 998 , 1999 , and 2 000 coun try reports 7 each indicate that the Ugandan government’s human ri ghts re cord remai ns poor, and, al though there ha ve been improvement s in seve ral areas, t here continue to be numerous, s erious problems, including the use of excessive force, t he use of torture to force confessions, extra-judici al kill ings, and harsh and life-t hreatening prison conditi ons. 8 The IJ did not9 The IJ did ac cept Senoga’ s counsel ’s expl anati on that Senoga ’s inabili ty to remember

the ti min g an d se que nce of h is de tenti on a nd t ortu re m igh t be d ue to pos t-trau ma tic stre ss. 10 give thi s background i nformati on adequate weight and his per sonal opi nion that Senoga

cou ld n ot p oss ibly still b e in d ang er w as n ot su ppo rted by the evid enc e. Other part s of Senoga’s testi mony, a nd parts of the t esti mony of his sister and brother , were si milarl y r eject ed by t he IJ, but rej ected not

based on the s pecifi c, cogent reasons t hat our ca ses require, but based on specul ation or conjecture. 9 For example, the IJ found the story of Senoga’ s escape “s o incredible that it pushes the barri er of belie vabili ty .” He could not belie ve that

after the expl osion on the bus, Senoga neve r asked w hat happ ened to the armed g uards and other prisoners. W e, how ever, are unsu re why the I J thought

it s o unreasonabl e that

a pris oner who has been tortured for months and h as esc aped , wo uld, w hen g iven th e opp ortun ity to flee, no t stop to inqu ire abo ut his captors and fellow p risoners. The IJ a lso found it hard to believe that, after w alking for a day wit hout anyidea where he was, Senoga “miracul ouslyencounter ed” Reverend Wa mala , wh o then assisted him. T he IJ, h ow ever, d id no t expla in any ba sis for h is

somew hat sarcastic rejection of this part of Sen oga’s story and did not discuss S enoga ’s testimony t

hat when he asked where he was, and was told, he real ized he knew someone ther e, R eve ren d W am ala. A n IJ m ust a rticu late a fou nda tion for his o r he r disb elief
. See, e.g. , Mulanga , 349 F.3d at 137-38 (noting, i n dicta , that IJ must do more to art

iculate a foundati on for her di sbeli ef regardi ng alie n’s escape than t o say the proffe red expla nation11

“lac ks c om mo n se nse ”). T he I J did not do s o he re. The IJ also f oun d it sho cking that Se nog a has not co ntacte d R evere nd W ama la si nc e l ea vi ng U ga nda , and d oe s n otin te nd to r ep ayhi m fo r t he pl an e tic ke t. He concluded that Senoga’s apparent ingratitude was ac tuall y an i ndication that his story was

conco cted, and that these answ ers were “ from the hip.” The IJ does no t, howev er, mention Senoga’ s test

imony t hat he does not

know W amala’s phone number and he does not cre dit Sen oga’ s fear that W ama la’s ph one m ight be tappe d. W e do n ot think that, without more, Senoga’s fai lure t o contact Wamala adequatel y suppor ts the IJ’s rejec tion of this part of S enoga ’s story. We also hav e difficulty with the IJ’s finding that Natha n’s testimony t

hat he, and not Wamala, pai d for the t icket explai ns why Senoga di d not contact Wamala, i. e. Senoga had no r eason to t hank or repay

Wamala because Senoga made up the w hole story. But the IJ doe s not explain w hy he dismisses N athan’s testimo ny that N athan did n ot tell Se nog a that h e paid for the ticket. The IJ also noted that S enoga claims to hav e had n o contact w ith his mother, although Nathan speaks t o her by phone three times a y ear. The I J did not explai n how this has any bearing on t he asy lum appli cati on, and, if it did, t he IJ shoul d have mentioned the testimony of S enoga ’s sister, Penina, that she is afraid that if sh e contacts he r mother, she w ill be pu tting he r mo ther’s life in dan ger. W e note that Pe nina a lso testifie d that, accordi ng to fri ends, her mother’s situation ha s not i mproved, with soldi ers stillcoming to ask for

guns and land, and accusi ng her of ass ociating with rebels. This tes timony12

surel y bol ster s both Peni na’s re luctance to cal l her mothe r and Senoga’s fear of persecution, y et it was not discussed bythe IJ. We also wonder why the IJ did not belie ve that

Senoga’s famil y has not defini tivel y determined whether two of his br others are stillin jai l, a nd did not bel ieve that t here coul d be confli cting reports as to t heir whereabouts. We also wonder, i n any event, what beari ng this has on Senoga’s a sylum application. The IJ als o emphasized t hat Penina ’s and Nathan’ s returns to Uganda – i n 1991 and 1 992 , respec tively – de mo nstrate th at they felt it sa fe to re turn, an d that th ey left on ly because they “s tir

red up tr ouble” – Peni na by hi ring a private investigator , and Nathan by suing the government. The IJ found that their quick departur es from Uganda do not supp ort the c laim th at the f amily w as un der co nstan t threats a nd h arassm ent fro m 1 986 to 199 7. A gain, it is u nclea r to us w hy Pen ina’s a nd N athan ’s trips ca ll Seno ga’s c redibility into ques tion. Moreover, al though they may have thought it

safe to return t o Uganda, theyboth quickl y l earned that the government stillclosel y guar ds any explanation of what hap pen ed to their fath er an d us ed f orc e to d o so . Finall y, the IJ was convinced that Penina ’s deci sion not to apply for asy lum during her five years i n C ana da d em ons trate s tha t she is an eco nom ic, no t a po litical , refu gee . Ag ain, w e do n ot un dersta nd w hat ba sis, othe r than m ere sp ecula tion, the IJ has f or this finding, and he ignore s her t esti mony that she chose not

to apply for asy lum in Canada because she was afr aid that if s he did, she would be deported. We also do not see how10 Because we remand to the BIA, we need not addres s Senoga’s argument that

stre amlini ng was inappropriate here. We note, however, that, a s we recentl y hel d, stream lining in gene ral is neith er inco nsisten t with th e Imm igration and N ationa lity Act, nor is it vio lativ e of an a sylum app lican t’s du e pr oce ss rig hts. See Dia , 353 F.3d at 234- 45. 13 releva nt thi s findi ng is t o Senoga’s appl ication, ot her than by

impli citl y sugge sti ng that Senoga’s si tuati on must be ident ical to Penina’ s. Equating the two sibli ngs, i f that is what the IJ did, fl ies i n the face of t he unrefut ed testimony about Senoga’s det ention and tort ure. In sum, we beli eve that the IJ ’s fi ndings “do not flow in a re asoned way fr om the evidence of record and ar e, at times, arbit

raryand conject

ural i n nature. ” Dia , 353 F.3d at 250. While t

he evidence i s not so cl ear as t o compel us to order that Senoga’s appl ication for asyl um or w ithholding of removal be granted, there must be “specifi c, cogent reasons” as to wh y Sen oga is no t to b e be lieve d. Thu s, we will gra nt the p etition to r eview , vaca te the B IA’s orde r, and re man d to the BIA for furt

her procee dings i n accordance wit h this opinion. 10