2004 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-31-2004

Lutula v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2943

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 03-2943

___________

NGANDU MUTOLO LUTULA,

 Petitioner

 v.

JOHN ASHCROFT, ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

___________

On Petition for Review from the Board of Immigration Appeals

No. A78-612-540

___________

Submitted Under Third Circuit LAR 34.1(a)

June 21, 2004

Before: NYGAARD, McKEE, and CHERTOFF, Circuit Judges.

(Filed: August 31, 2004)

___________
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OPINION OF THE COURT

___________

NYGAARD, Circuit Judge.

Ngandu Mutolo Lutula petitions for review of a final order of the Board of

Immigration Appeals affirming the Immigration Judge’s denial of his claims for relief

from removal. The BIA had jurisdiction under the regulations at 8 C.F.R. §§1003.38 and

1003.1(b). We have appellate jurisdiction pursuant to 8 U.S.C. § 1252(a)(1) and will

deny the Petition for Review.

I.

Because we write solely for the benefit of the parties, we recount the facts of this

case only as they pertain to our analysis. Ngandu Mutolo Lutula (“Lutula”), a citizen of

the Democratic Republic of the Congo (“the Congo”), entered the United States on

November 11, 2000 as a non-immigrant visitor for business. 

Lutula testified before the IJ that he is an ethnic Tutsi in the Congo. In 1997, after

Laurent Kabila took over the Congolese government, Lutula claims that there were

occurrences of ethnic violence against Tutsis. Lutula testified that his father was beaten

and arrested because he was a Tutsi, that his mother is missing, and that his brother was

killed.

Lutula further testified that in November of 1998, his scholarship to a university in

China was cancelled because he is a Tutsi. He remained in China and worked until he
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allegedly received letters from the Congolese Embassy accusing him of being a traitor

and a spy and from the Chinese police telling him that his visa was withdrawn and that he

was to report to the police station. Lutula stated he then fled to the United States out of

fear that he would be killed should he be returned to the Congo.

On March 13, 2001, a Notice to Appear was issued charging Lutula with

removability under Section 237 of the Immigration and Nationality Act as an alien who

remained in the United States for longer than permitted under his visa. 8 U.S.C. §

1227(a)(1)(B).

On May 8, 2001, Lutula appeared before the IJ, admitted he was subject to

removal, and applied for asylum, withholding of removal, and protection under the United

Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment

or Punishment. On September 20, 2001, after a hearing on the merits, the IJ denied

Lutula’s applications for relief. The IJ found that Lutula was not credible because his

story was, in many respects, implausible, it was not supported by any corroborating

documentation, and that Lutula failed to meet his burden of proof. The IJ ordered that

Lutula be removed from the United States. 

Lutula filed an appeal with the BIA on October 18, 2001. On June 9, 2003, the

BIA found that Lutula failed to meet his burden of proving future persecution, and that

the IJ could reasonably have expected him to provide evidence corroborating his

testimony. The BIA specifically found that Lutula could have provided (1) proof that the
4

Congolese government actually cancelled his scholarship and why, (2) support for his

assertion that his father’s arrest and his brothers’s death occurred and were due to their

ethnicity, (3) proof that the Congolese foreign minister gave a speech advocating the

death of all Tutsis, (4) an affidavit from Lutula’s girlfriend to establish that she was

arrested and interrogated by police about his whereabouts, and (5) evidence to support his

assertion that the Chinese police wanted to arrest him. The Board also noted that the one

piece of evidence Lutula did provide was not credible on its face, and that he did not offer

any reasons for his failure to supply additional documentary evidence. The BIA

dismissed the appeal and affirmed the IJ’s decision.

II.

We review the findings of fact contained in the BIA’s decision to determine

whether they are supported by substantial evidence. Gao v. Ashcroft, 299 F.3d 266, 272

(3d Cir. 2002). An adverse credibility determination must be upheld unless “‘any

reasonable adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8

U.S.C. § 1252(b)(4)(B)).

Lutula argues that it was not reasonable for the BIA to expect him to provide the

enumerated evidence to corroborate his asylum claim. However, we have held that the

BIA may require even an otherwise credible applicant for asylum to submit sufficient

corroborating evidence if it is “reasonable to expect corroboration.” Abdulai v. Ashcroft,

239 F.3d 542, 554 (3d Cir. 2001). If the applicant has not provided the corroborating
5

evidence, the BIA should analyze whether the applicant adequately explained his failure

to do so. Id. 

The BIA reviewed the record and concluded that Lutula should have been able to

provide some of the enumerated evidence to corroborate his claim. The BIA provided a

list of specific facts to be corroborated, and it agreed with the IJ that the complete lack of

supporting documentation undermined Lutula’s credibility. For example, Lutula could

have contacted his professor in China to obtain documentation regarding the cancellation

of his scholarship, but failed to do so. Lutula gave no explanation for his failure to supply

such additional documentary evidence. 

It was not unreasonable for the BIA to require some documentary corroboration of

Lutula’s testimony and the BIA’s adverse credibility determination is supported by

substantial evidence. Therefore, for the reasons set for above, we will deny the Petition

for Review. 

_________________________