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 8-31-2004 

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w . v i l l a no va . e du/thir dc ir c uit_2004/382NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ No. 03-2943

___________ NGANDU MUTOLO LU TULA, Petitioner
v. JOHN ASH CROFT, ATTOR NEY G ENERA L OF THE U NITED STATES, Respondent

___________ On Petition for R eview from the B oard of Im migra tion A ppea ls

No. A78-612-540

___________ Submitte d Under Third Circ uit LAR 34.1(a)

June 21, 2004
Be for e: N YG AA RD , M cK EE , and CH ER TO FF , Circu it Judges .

(Fil ed: August 31, 2004)

___________2 OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge . Ngandu M utolo Lutula petiti ons for re view of a finalorder of t he Board of Immigration Appeals af firming t he Immigration Judge’ s denialof his cl aims for relie f from removal. The BIA had jurisdi ction unde r the regulations at 8 C.F.R. §§1003. 38 and 100 3.1(b ). We have appe llate jurisd iction p ursua nt to 8 U .S.C. § 125 2(a)(1 ) and will de nyth e Pe ti ti on f

orRev ie w. I. Bec ause we write s olely for th e ben efit of the pa rties, we recou nt the f acts of this case only as theypertai n to our anal ysi s. Ngandu Mutolo Lutul a (“Lutul a”), a citi zen of the Democrati c Republic of t he Congo (“the Congo”), entere d the Unite d States on No vem ber 11, 2 000 as a non -imm igra nt v isitor for bus ines s. Lutula testi fied befor e the IJthat he is an et hnic Tutsiin the Congo. In 1997, after Lauren t Kabila took over the C ongolese govern ment, Lu tula claims that there w ere occurrenc es of ethni c viole nce agains t Tutsi s. Lutul a testifie d that hi s father was beaten and arres ted becaus e he was a Tutsi , that his mother is missi ng, and that his brother was kill ed. Lutu la furth er testified that in N ovem ber o f 19 98, his scho larship to a un iversity in China was cancell ed because he i s a Tutsi . He remained i n China and worked unti l he3

alle gedlyrecei ved letters from the Congoles e Embassy ac cusing hi m of being a tr aitor and a spy and from the Chines e polic e tel ling hi m that hi s visa was wit hdrawn and that

he was to report to t

he polic e station. Lutula st ated he then fled t o the Unite d States out of fear that he would be ki lled s hould he be re turned to the Congo. On M arch 1 3, 200 1, a N otice to Ap pear w as issue d cha rging Lutu la with removabil ity

under Secti on 237 of the Immigr ation and National ity Act as an al ien who
rem aine d in the U nited Sta tes f or lo nge r tha n pe rmit ted u nde r his v isa. 8 U.S .C. § 1227(a )(1)(B). On M ay 8, 200 1, Lu tula ap peare d bef ore the IJ, adm itted he wa s sub ject to removal, and appli ed for asy lum, withholding of removal, and pr otection under t he United Nations Conventi on Against Tort ure and Other Crue l, I nhuman, or Degradi ng Treatment or Punishment . On September 20, 2001, aft er a hearing on the merits , the IJ deni ed Lutu la’s ap plication s for re lief. Th e IJ fo und that L utula w as no t credib le bec ause his story was, in manyrespect s, i mplausibl e, i t was not suppor ted byany cor

roborating documentati on, and that Lutul a fail ed to meet hi s burden of pr oof. The IJ ordered that Lu tula b e rem ove d fr om the U nited Sta tes. Lutula fi led an appealwith the BIA on October 18, 2001. On June 9, 2003, the BIA found that Lutul a fail ed to meet hi s burden of pr oving future persecut ion, a nd that the IJ c ould reaso nably ha ve ex pecte d him to pro vide e viden ce co rrobo rating h is testimony. The BIA specifical ly found that Lutula coul d have provide d (1) proof that t he4

Co ngo lese go vern men t actua lly cancelle d his sc holars hip an d w hy, (2) sup port fo r his assertio n that h is fathe r’s arres t and h is broth ers’s d eath o ccurre d and we re du e to the ir ethnic ity , (3) proof that the Congolese foreign mi nist er gave a spe ech advocati ng the death of al l Tutsi s, ( 4) an affi davit f rom Lutula’ s girl friend to establ ish that she was arrested and in terrog ated b y police a bou t his w herea bou ts, and (5 ) evide nce to supp ort his assert ion that the Chinese police wanted to arrest him. The Board al so noted t hat the one piece of evi dence Lutula did provi de was not credible on it s face, and that he did not of

fer any reasons fo r his failure to supp ly additional docum entary evidence. T he BIA dismis sed the appe al and affi rmed the IJ ’s deci sion. II. We review the fi ndings of fact contai ned in the BIA’s decisi on to dete rmine wh ethe r the y are su ppo rted by sub stan tial ev iden ce. Ga o v. A shcro ft , 299 F.3d 266, 272 (3d Cir. 2002). An advers e credi bili ty determi nation must be upheld unl ess “‘any reasonabl e adjudi cator would be compelled to conclude t o the contrary .’” Id . (quoting 8 U.S.C . § 1252(b )(4)(B)). Lutula ar gues that

it was not

reasonabl e for the BIA to expect hi m to provide t he enumerated evi dence to cor roborat e his as yl um claim. However, we have held that the BIA may require even an otherwise credi ble appl icant for asy lum to submit

suffici ent corrobor ating e vidence i f it i s “reas onable t o expect cor roboration.” Abd ulai v. A shcro ft , 239 F.3d 542, 554 ( 3d Cir. 2001) . If t he appli cant has not

provided t

he corrobor ating5

evidence , the BIA should an alyze whethe r the applicant ad equately explained his failure to d o so . Id . The BIA review ed the record and c onclu ded th at Lu tula sho uld h ave b een a ble to provide s ome of the enumerat ed evidence to corrobor ate hi s clai m. The BIA provided a lis t of speci fic fact s to be cor roborat ed, and i t agree d with the IJ that the complete lack of supp orting d ocum entatio n un derm ined L utula’s credib ility. For exam ple, L utula c ould have contacted his pr ofessor i n China to obt ain documentat ion regarding the c ancell ation of h is scho larship , but fa iled to d o so. L utula g ave n o exp lanatio n fo r his fa ilure to su pply
suc h ad ditio nal d ocu me ntar y evid enc e. It was not

unreasonabl e for the BIA to requir e some documentary corrobor ation of Lutula’ s test

imony and t

he BIA’s adverse credibi lit y determination is supporte d by substant ial e vidence. Therefore, for the reasons set for above, we will denythe Peti tion for Re view .

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