NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0577n.06 Nos. 09-3816, 09-3817, 09- 3818
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT
H E R R Y O M A R I K I E G E M W E , AB RAH AM YUDAS TEMBO , and A N T H O N Y R O M A N U S L UAMB ANO, Petitioners,

v.
ERI C H. HOL DER, J R., Attorney Gene ral, Respondent.

______________________________ (No. 09-3816) (No. 09-3817) (No. 09-3818) )

) ) ) ) ) ) ) ) ) ) ) ) ) On Petition for Review of an Or der of

the B oard of I mmigration Appeals

Before: G IBBO NS and WHITE , Circuit Judges, and MALONEY, District Judge. *

HELE NE N. WHI T E , Ci rcuit Judge. Her ry Kieg emwe, Abra

ham Tembo, and Anthony
Luambano (petitioners) petition for review o f t h e decisions of the Boa rd of I mmigra

tion Appea ls (B I A) aff irming the I mmigra

tion J udg e’s (I J ’s) denials of asy lum. On appea l, pe titioners c halleng e
the deter mination that they did not establish an objectively rea sonable fea r of future perse cution. We

g rant the pe titions for r eview and REMAND to the BI A for additional proce eding s consistent with this opini on.
I

The Honora

ble Paul L

. M al o n ey , C hief J udg e of the United States District Court for the * Western District of Michig an, sitting by desig nation.Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder Petitioners, Tanzanian natives an d th e n - te e n a g e B o y Scouts, arr ived in the United States along
with a fourth teena g e scout, Fikiri Lusingo, on valid six -month visas to attend the 2001 I nterna tional Boy Scout J ambore e in Virg inia. The four scouts left the J ambore e befor e it conclude d, wer e repor ted missing and wer e the subject of extensive international pres s coverag e (including cover ag e that
ref err ed to them by name and that labeled them as “disloy al” to Tanzania). They turned themselves in to local police, we re inc arc erated, and we re turne d over to fe dera l officials.
The four scouts soug ht asy lum, asser

ting that they would be subjected to harsh retaliatory

trea tment for embar

rassing the Tanzanian g overnme nt if forc ed to return. Lusingo’ s case proce eded

separ ately in Pennsy lvania and was resolved sever al y ear s befor e the instant case s. Lusingo appea led
the denial of his ap p l i ca t i o n for asy lum to the Third Circuit, and the court g rante d the petition for
revie w and rema

nded. Lusingo v. Gonzales , 420 F.3d 193 (3d Cir. 2005). On rem an d , t h e BI A

reve rsed itself, concluding “upon further revie w of the rec ord” that Lusingo was elig ible for asy lum depende nt on require d secur ity chec ks. An I J later g rante d Lusingo a sy lum.

1
Petitioners’ three case s proce eded in tandem befor e an I J in Detroit, Michig an. The I J found petitioners cre dible and their fea r of perse cut io n s u

bjectively rea sonable, but conclude d that they wer e ineligible for asy lum beca use their applications wer e untimely and, alternatively , beca use they failed

to demonstrate that their fea r of perse cution was objectively rea sonable. Severa l of the I J ’s rea sons
for so concluding had been expressly reje cted by the Third Circuit in Lusingo and had prompted its

rema nd to the BIA. In the i nstant case s, the BI A found petitioners’ asy lum applications t imely but

Donald F ikiri L usingo, A79 239 847-York ( BI A Dec . 8, 2005); A.R. 1164. 1
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Kiegemwe, e t al. v. Holder
conclude d that substantial evidenc e supported the I J ’s alternate conclusion that petitioners failed to
demonstrate an objectively rea sonable fea r of per s ecution. The BI A’s rea soning mirrore d the analy sis expli citly reje cted by the Third Circuit in Lusingo

. This court consolidated pe titioners’ appe als for purposes of a

rg ument.
II - the Lusin go case
Lusingo’ s case fig ures prominently in petitioners’ arguments, and for g o o d rea son

– petitioners wer e in all respe cts simil arly situated to Lusingo and prese nted t he same experts as had
Lusingo. See n.7, infra.
On Lusingo’ s appea l of his aff irmative application for asy lum, the Third Circuit rema nded to
the B I A for f

urther e x planation of the ba sis for its decision:
Lusingo petitioned for asy lum based upon his fea r that he would be perse cuted upon his return home beca use the Tanzanian g overnme nt persecu t es p eople who embar rass it

. The testim ony Lusingo produced d u ri n g the ensuing removal hear ing befor e the [I J ] included the decla ration of Dr. Rakesh Rajani. Dr. Rajani’s expertise on human rig hts in Tanzania was not disputed. His decla ration states in pertinent part:
the g overnme nt [of Tanzania] l ooks unfavor ably on those who they perc ei ve to have embar

rasse d the g overnme nt or that simply ref lect poorly on the go v er n ment, espec ially in the ey es of the international community

. . . [L usingo]

. . . publicly embar rasse d the Tanzanian g overnme nt by disappea ring from the B oy Scout J ambore e . .
. which led to the i nvolvement of the U.S. authorities and spurre d wide sprea d media cover ag e both in the United States and in Tanzania. The Tanzanian g overnme nt does not turn a bli nd ey e to such embarra ssing publicity , as it could mar their rela tionship with Western donors

. . . if sent back to T anzania, [L usingo] is likely to be arr ested and interrog ated upon arr ival, as the Ta nzanian g overnme nt is clearly quite interested in his ca se, as is shown from its statements to the Americ an and Af

rica n press. After he is arr ested, he may be subject to beating s, indefinite detention, a pr olonge d trial.

Dr. Rajani also descr ibed Tanzanian jails and the ty pe of torture and trea tment endure d by prisoners. Acc ording to his decla ration, this i n cl u d es : co-ming ling of adults and children and the conseque nt sexual abuse of the children, cells cover ed with
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Kiegemwe, e t al. v. Holder
urine and fec es, forc ed manual labor including car rying buckets of human excrement; an d lack of due proce ss. Dr. Rajani also explained that, g iven the unfavor ab l e publicity , Lusingo could be subject to prolong ed imprisonment under such conditions without actua lly being char g ed with any crime. He rec ounted an event in 2002 wher e 120 prisoners wer e held in a room desig ned to hold 30. Many of those prisoners died of suffoc ation. Dr. Rajani’ s decla ration ende d with the following statement: [L usingo] is at risk of the af oreme ntioned conditions a nd abuse e ven if he is not ultimately

convicted of a crime

. . . . Fikiri would be he ld as a rema nd prisoner, wher e
. . . he would endure appalling conditions and be vulnera

ble to se x ual molestation a nd abuse by

adult prisoners or detainees

. Thus, [he] is likely to fac e abuse notwithstanding the o u tcome of his case if he is forc ed to return to Tanzania and i s prosec uted.
When asked to descr ibe the attitude of the Tanzanian g ove r n me n t to w a

rd those believed to be disloy al, Dr. Rajani responde d: the g overnme nt takes a very dim view of the people who are disloy al. I t has very littl e toleranc e for them

. . . dissent is seen as unpatriotic, it is s ee n as trea cher ous, and people who are perc eived to have been disloy al to t h e go v ernme nt are trea ted very harshly by the g overnme nt.” He also decla red that L usingo’ s depar

ture from the Boy Scout Jamboree had rec eived “quite a bit of coverag e.” He lived in Tanzania at the t ime and reca lled “vividly that there was a strong sense in Tanzania that what these y oung people have done was, was extremely disloy al and y ou g ot a palpable sense the g overnme nt was ang ry with their actions.”
Dr. Rajani opined that it was likely that the Tanzanian g overnme nt w ould ja il Lusingo upon his return and that he would be mistreated in much the same manner the g overnme nt trea ts the street chi ldren who are also a source of embar rassment. Dr. Rajani beli ev ed t hat the Tanzanian g overnme nt was ang ry , “espe cially since his situation is so unusual for ge nerating so much m edia inter est in both countries.” D r. Rajani conclude d that Lusingo had a “re asonable and leg itimate fea r of returning to Tanzania,” beca

use it wa s likely that he would be “deta ined, interrog ated, a nd in that proce ss would be held in prison conditions that would be detrimental to his health and probably life threa tening .” Dr . Rajani’s testimony was not re butted.
Lusingo al s o p roduced a decla ration from L oren L andau, Ph.D., a Resear ch Coordinator of the Wit water st and’s For ced Migr ation Studies Prog ram in J ohannesbur g , South Afric a. Dr. L andau [] had first-hand knowl ed ge o f prison conditions in Tanzania. He opined that Lusingo had a “leg itimate and rea sonable fea r of imprisonment if returne d to T anzania, wher e he would likely be comming led with
4Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder adults and would certainly fac e horrific conditi ons
. . . [because] . . . the g overnme nt continues to act with disproportionate forc e ag ainst individuals or g roups who oppose the g overnme nt or embar rass the g overnme nt in any way .”

. . . . Documenta

ry evidenc e that was admitted corr oborated Lusingo’ s evidenc e. U.S. Sta te Depa

rtment Country Reports on Human Rights Practice s in Tanzania descr ibed that country ’s jai l s as being among the worst in Afric a. The Report also confirme d that the Tanz anian gove rnment has littl e appetite for d i s s en t

. The human rig hts rec ord was “poor” and includes arbitra ry arr ests, torture, beatings , and horre ndous prison conditions.

. . . . The BI A re as oned: “[L usingo’ s] experts do not have a g ood analog y of [hi s] situation, insofar as the mistreatment of street children in Tanzania does not have much rele vance to [hi s] claim. [ L u s ingo] comes from a stable family , with both pare nts employ ed, and he attended school until he left Tanzania. Whil e such media attention may have embar

rasse d the Tanzanian Gover nment, we do not find that it g ives rise to a we ll-founded f

ear of per secution.”
The B oard a lso reasone d that the fa ct that Lusingo’ s pare nts ha d neither be en arr ested nor harme d even though Lusingo had testified that they know of his desire to re m ai n in the United States from the outset, undermined Lusingo’ s claim o f a wellfounde d [ sic ] fea

r of p erse cution upon his return home. The Boa rd thus denied relief , and this Petiti on for Revie w followed.

. . . . The BI

A’s conclusion that Lusingo’ s claim was not objectively rea sonable was based primarily upon the analog y to street children that also troubled the I J

. The Boa rd explained: [“] [L usingo’ s] experts do not have a g ood analog y to [hi s] situation, insofar as the mistreatment of street children in Tanzania does not have much rele vanc e t o [L usingo’ s] claim. [He] comes from a stable family , with both pare nts employ ed, and he attended school until he left Tanzania. Whil e such attention may have embar rasse d the Tanzanian Gover

nment, we do not find that it g ives rise to a well founded fea r of perse cution. The rec ord does not establish that the media attention

. . . wi l l l ea d to [L usingo’ s] persecution.[”]
Id. The BIA’s explanation is puzz ling beca use it totally misses the point of Lusingo’ s analog y
. Lusingo did not claim that he was part of the social g roup of street children, as the BIA’s analy sis s u gges t s , or that he was subject to perse cution upon his return beca use the Tanzanian g overnme nt perse cutes children. Rather, he mere ly introduced evidenc e of the Tanzanian g overnme nt’s repr essive attitude t o ward street children beca use they are an embar

rassment to the Tanzanian g overnme nt, and beca use the go vernme nt’s reta liation for the embar rassment they cause is rele vant to the
5Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder

rea sonablene ss of L

usingo’ s fea

r that he will be perse cuted upon his return beca use he also embar

rasse d the g overnme nt. That testimony , if acc epted, is cer tainly supported by the rec ord, and could establish Lusingo’ s claim of an o b jectively rea sonable and well-founde d fea

r. Thus, we are at a loss to understand the Boa rd ’s re jection of it based upon what it appar ently interpre ted as a poorly conce ived attemp t t o s u ggest Lusingo w as a stre et child.
W e are also at a loss to understand the signific ance the Board attached to the fac t that the Tanzanian g overnme nt had not reta liated ag ainst Lusingo’ s pare nts. The Boa rd rea soned, “the lack of repe rcussion to his family tends to sug g est that his family h as n othing to fea

r from the g overnme nt. We too find the rea sonablene ss o f [L usingo’ s] fea

r of perse cution is reduc ed insofar as his family continues to reside unharme d in Tanzania.” Howeve r, as the Boa rd clea rly notes, Dr. Rajani testified that Lusingo’ s family would only be “tre ated harshly if the Tanzanian governm ent thought they were party to [his] unauthorized stay in the United St a t es .” Although Lusingo testified that his pare nts knew of his de sire to r emain here to se ek an education, ther e is nothing to sug g est that [] his pare nts knew that he planned to leave the jamboree and stay in the United States when he l ef t T an z an i a, or that the media repor ts sug g ested they knew, or that the Tanzanian g overnme nt suspected their complicity

. Acc ording ly , Dr. Rajani’s testimony does not suggest that the g overnme nt’s failure to reta liate ag ainst Lusingo’ s pare nts should undermine the objective rea sonablene ss of Lusingo’ s fea r of r etaliation abse nt further explanation for re achingthat conclusion.
There is no dispute that Lusingo’ s fea r o f re t u rn is g enuine. I n addition, the BIA acc epted the evidenc e of the repr essive and reta liatory nature of the Tanz an ian reg ime as well as the fac t that repor ts of L usingo’ s depar

ture from the jamboree rea ched Tanzania and cause d the go v er nment embar rassment. Moreove r, as noted above, the BIA acc epted the I J ’s analy sis of Lusingo’ s asy lum claim as being based on imputed political opinion criticizing the g overnme nt. Acc ording ly , it is difficult for us to determine on this re cord w hy Lusingo is not entitled to the asylum he is seeking

. I n simil ar situ at ions, we have gra nted petit ions for review, and rema nded the
m atter for additional explanation of the rationale for denying relief

. I n Kayem b e [ v. Ashcroft , 334 F.3d 231, 238 (3d Cir. 2003)], we g rante d the p et i t i o n fo r revie w and rema nded to the BI

A beca use “‘the BI A’s decision [provided] us with no way to conduct our (albe it limit ed) revie w.’” Simi larly , in Dia v. Ashcroft , 353 F.3d 228, 251 (3d Cir. 2003) ( en banc ), we could not understand the I J ’s rationale for denying relief

. We stated: “we cannot aff irm the I J ’s finding s and conclusions on the rec ord prese nted to us, as the rea sons she does provide in support of her decision do not log ically flow from the f acts she c onsidered.”

6Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder

Given the BI

A’s misint erpr etation of Lusingo’ s evidenc e about street children, and the unwar

rante d weig ht attache d to the fac t that his pare nts wer e not persecu t ed when the Tanzanian g over n m en t l earned of the unfavor able repor ts of his depar

ture from the jamboree , the rea sons the BI A g ave in support of its decision do not logic ally flow from the fac ts it considere d here either. Acc ording ly , we rema nd to the BI A for further explanation of the basis for its decision. “When defic iencies in th e BI A’ s decision make it impossibl e for us to meaning fully revie w its decision, we must vacate that decision and rema

nd so that the BI A can further explain its rea soning.” Kayembe [ v. Ashcroft ], 334 F.3d [231,] 238 [3d C ir. 2003]. Lusingo , 420 F.3d at 195-201 (interna l citations to recor d omitted, emphasis in origina l).
On rema nd from the Third Circuit, the BI A reve rsed itself in an unpublished order per curiam: [U] pon further revie w of the rec ord, we find t h e responde nt elig ible for asy lum, depende nt u p o n t h e require d secur ity chec ks, and the rec ord does not ref lect that a denial of asy lum in the exercise of discretion is w arr anted in this case
. See generally Matter of Kasinga , 21 I &N Dec

. 357 (B I A 1996). Acc ording ly , t h e decision of the Boa rd in this case dated October 27, 2003, is vacated and the rec ord is rema nded to the I mmigration J udg e for

the re quired sec urity

chec ks . . . . [Donald Fikiri Lusingo, A 79 2 3 9 847-York (B I A Dec

. 8, 2005); A.R. 1164.] Subsequently , an I J

g rante d Lusingo a sy lum.
III - P etitioner s’ appeals to the BIA
I n three substantially identical opinions, the BI A deter mined that the instant peti t i o n s wer e 2 timely , but that substantial evidenc e supported the I J ’s conclusion that pet i t i o n ers are ineligible for

asy lum beca

use they failed to establish an objective fea r of perse cution. Finding the I J ’s rea soning

more persua sive than the Third Circuit’s rea soning in Lusingo , the BI A ag ree d with the I J that: 1) “the
Tanzanian g overnme nt’s poor trea tment of street children or of student demonstrators provides littl e

Diffe renc es in the BIA’s three decisions ar e found at 2, n. 2; 3 (last para g raph) ; 4 (1st full 2 para g raph) . Luambano J.A. at 7-11/ A.R. 3-7; Tembo J.A. at 7-11; A.R. 3-7.
7Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder insight i nto how the gover nment might treat the respondent[s] if he shoul d return to Tanzania y ear s
afte r h av i n g b een in the news for leaving a boy - scout jamboree in the United States and seeking

asy lum,” and 2) “the ability of t he respondent [ s ’] fa m i l[ ies] to continue to live in Tanzania without
adver se action by the g o v er n m en t g reatly diminis hes the likelihood that [t hey ] will fac e harm if he
should return.” The BI A also conclude d, as had the I J , that re s p o n dents’ claim “that the Tanzanian

g overnme nt may perse cute [t hem] for embar rassing the g overnme nt is not suppo rt ed by the State Depa rtment’s Country Reports on Human Rights Practices for 2007.” 3
The B I A dec ision procee ded as f ollows: The respondent di sputes the [ I J ’s] deter mination t h at h e did not establish the o b j ective component of his asy lum claim, i.e., that a rea sonable person in hi s circ umstances would fea

r perse cution on acc ount of a protec ted g round if returne d to Tanzania. The responde nt cites to a Third Circuit decision in the case of a fellow boy scout who had left the jamboree with the responde nt and who also applied for asy lum based on a fea

r of reta liation from the Tanzanian g overnme n t. See Lusingo v. Gonzales , 420 F.3d 193 (3d C ir. 2005). I n Lusingo , the .

. . Third C ircuit found t hat the Boa rd err ed in dismiss ing the responden t ’s , an d his experts’, analog y to street children who ar e re p resse d due to the embar rassment they cause the Tanzanian g overn m en t an d also err ed in attaching signific ance to the fac t that the Tanzanian g overnme nt had not reta liated ag ainst Lusingo’ s pare nts. As a result, the court found that the Board’ s conclusion t hat L usingo d i d n o t have an obj ectively rea sonable fear of persecution was not supported by substantial evidenc e, and the cour t remande d to the Boa rd. The Boa

rd issued a decision on Dec ember 8, 2005, stating that pursuant to the Third Circuit’s decision, and upon further revie w of the rec ord, we found Lusingo elig ible for asy lum and rema nded the rec ord for the completion of a backg round chec k.
The responden t cannot succe ed by rely ing on prec edent from a jurisdiction outside that of t he .

. . Six th Circuit or by rely ing on an unpubli shed Board d ec ision, particula rly one which was issued pursuant to a rema nd by a court in another jurisdiction. See Matter of Anselmo , 20 I &N Dec

. 25, 31 (1989) (stating that “[w]here we disag ree with a court’s position on a g iven issue, we decline to follow it outside the

BIA dec ision of J une 2, 2009; J .A. 8, 9, 10. 3
8Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
court’s circ uit”); Matter of Z a n g w i l l , 1 8 I &N Dec

. 22 (B I A 1982) (finding that an unpublished Boa

rd decision is not binding in othe r case s). Moreove r, we ag ree , with the [ I J ] , for the rea sons stated in her decision, that the responde nt has not met his burden of establishing the objective component of his asy lum claim. I n this reg ard, we find the [I J ’s] rea soning in deter mining that the circ umstances of student de mo n s tr ators and street children in Tanzania are entirely distinct from the responde nt’s ci rcumstances such that they are not particula rly useful in deter

mining h o w t h e Tanzanian g overnme nt might trea t the responde nt upon hi s re t u rn to be more persua sive than the Third Circ uit’s analy sis of this is sue.
The Third Circuit in Lusingo found that the Boa rd had “misinterpre ted” L u s in g o ’ s e v id e nce about street children beca use Lusingo “mer ely introduced evidenc e of the Tanzanian g overnme nt’s repr essive attitude toward street children beca use they are an embar

rassment to the Tanzanian g overnme nt, and beca use the g overnme nt’s reta liation for the embar rassment they cause is rele vant to th e re as onablene ss of Lusingo’ s fea

r that he will be perse cuted upon his return beca use he also embar

rasse d the g overnme nt.” Lusingo v. Gonzales, supra , at 200. Howeve r, we ag ree with the [I J ] that the Tanzanian g overnme n t ’s poor trea tment of street children or of student demonstrators provides littl e insight into how the g overnme nt might trea t the responde nt if he should return to T anz ania y ear s afte r having been in the news for leaving a boy scout jamboree in the United States and seeking asy lum. As pointed out by the [I J ], the vag ue cate g ory of “individuals who have embar rasse d the g overnme nt” is so broad and can cover so many differ ent behavior s and circ umstances that the g overn m ent’s trea tment of one individual or g roup of individuals who eng ag e in behavior which may

be viewe d as emba

rra ssing to the gove rnment i s not nece ssarily instructive as to how others who “emba rra ss” the g overnme nt in another manner may be tre ated. Additionally , we are not convince d that the g overnme nt’s methods of try ing to clea r the cities of street children, who expert Dr. Rakesh Rajani acknow ledg ed hara ss motorists stopp ed at red lights, beg for money , and sleep in the streets, by detaining them without char g e or forc ibly reloc ating them are motivated solely or even principally by the g overnme nt’s desire to “re taliate” ag ainst individuals whom it considers an embar

rassment, rathe r than a desire to maintain order , control crime, and p re v en t h arassment of other city residents. The rec ord does not indicate that the Tanzanian g overnme nt arr ests o r d etains former street children, or former student demonstrators, in reta liation for having embar rasse d the g overnme n t in the past. Finally , street children are a particula rly vulnera

ble g roup in view of their ag e and their g ener al lack of family ties or connec tions with any one who could ad v ocate on their behalf

. [Discus s i o n o f responde nts’ immediate family members living in Tanzania, their par ents’ employ

ment, and siblings attending sc hool there.]

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Kiegemwe, e t al. v. Holder

Additionally , we ag ree with the [I J ] that the ability of the responde nt’s family to continue t o live in Tanzania without adver se action by the g overnme nt g reatly diminis hes the likelihood that he will fac e harm if he should return. See Matter of AE-M, 21 I &N Dec

. 1157 (1998) (re asonable ness of alien’s fea r of perse cution is reduc ed when his f

amily rema ins in his native country unharme d for a long period of tim e af t er h i s depar

ture). The responde nt acknow ledg ed that his fathe r paid the scoutmaster to allow him to stay in the United States so that he could pursue e d u c a ti o n a l o p p o r

tu n ities in this country

. [Discussion of individual responde nts ’ f a mi ly members not havinghad ser ious problems with the g overnme nt.]
L ike t he [ I J ] , we find it “diffic ult to believe that the gover nment of Tanzania would fail to rea ch the common sense conclusion that the pare nts of the 15-17 y ear old Boy Scouts may have had some input in their decision to rema in in the United States”. This is espec ially true wher e a news repor t cites a Tanzania Scouts Association officia l acknow ledg ing that the dec i sion not to return may have been “made in conjunction with the pare nts,” and more rec ent news repor ts indicate that in the y ear s following the responde nt’s depar

ture from the J ambore e, a la rg e number of Tanzanian scouts have failed to return to Tanzania afte r attending international scouting events. I n d e e d, rec ent repor ts impl icate the same scoutmaster (identified as a TSA c ommissi oner) who had
arr ang ed for the responde nt’s trave l in a scheme involv i n g t h e s ale of invitations to international scouting events to families of y ouths who are willing to p ay for the opportunity to have their children leave Tanzania and then rema in outside their country once the event is over. The rec ord contains no evidenc e that any TSA officia ls, pare nts of scouts, or scouts themselves have been subjected to perse cution as a result of having participa ted in this arr ang ement. We find implausible, and not supported by evidenc e, the notion that the Tanzanian g overnme nt ma y perse cute the scouts who, as children, rema ined in the United States pursuant to an arr ang ement made by their pare nts and a scoutmaster while not seeking any repe rcussions at all ag ainst t h e adults responsible for the a rra ng ement. Additionally , we ag ree wi t h t he [I J ] that the responde nt’s claim that the Tanzani an g overnme nt may perse cute him for embar rassing the g overnme nt is not supported by the State Depa rtment’s Country Reports on Human Rights Practice s for 2007 (her einaf

ter Country Reports ). The Country Reports indicate that there wer e no politically motivated killings by the g overnme nt or its ag ents, no repor ts o f p o l i t ical prisoners or detainee s, and no repor ts of politically motivated disappea ranc es. Pol it ical opponents are allowed unrestric ted acc ess to the media, and “t h er e wer e numerous instances of

strong criticism of national lea ders in the pr ess”.
We ag ree with the [I J ] that the responde nt did not meet h i s b u rden of establishing that a rea sonable person in his position would fea r perse cution on acc ount
10Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
of his rac e, re ligion, nationality , membership in a pa rticular social g roup, or political o p i n i o n if returne d to Tanzania. There fore , he has not established the basis fo r an asy lum claim . . . . Accor dingly , the appe al will be dismissed. [BI A dec ision J une 2, 2009 at 2- 5; J .A. at 8-11 ( internal c itations to record omitted).]
IV
Where the BIA revie ws the immigra tion judge ’s decision and issues a separ ate opinion, rathe r than summarily aff irming the immigra tion judge ’s decision, we revie w the B I A’s dec ision as the final ag ency deter mination. To the extent the BI A adopted the immigra tion judge ’s rea soning, howeve r, this Court also revie ws the immigra tion judge ’s decision. Questions of law are revie wed de novo, but substantial defe renc e is g iven to the BIA’s interpre tation of the I NA and acc ompany ing regulations. The BI A’s interpre tation of the statute and regulations will be upheld unless the interpre tation is arbitra ry , capr icious, or manife stly contra ry to the statute.
This Court revie ws both the immigra tion judge ’s and the BI A’s fac tual finding s under the substan t i al -evidence standard. We cannot reve rse such finding s simply beca use we would have decide d them differ ently

. These finding s are conclusive unless any rea sonable a djudicator would be compelled to conc lude to the contra ry
. Khalil i v. Holder , 557 F.3d 429, 435 ( 6th Cir. 2009) (interna l citations and quotations omitt ed).
The Attorney Gene ral has discretion to g rant asy lum to a person who qualifies as a “re fug ee”
within the meaning of section 1101(a) (42)( A) of the I mmigration a nd Nationality Act (I

NA). Abay

v. Ashcroft , 368 F.3d 634, 636 (6th Cir. 2004) (c i t i n g 8 U. S

. C

. § 1158(b)( 1)). The I NA define s a
ref ug ee a s
any person who is outside any country of such person’ s nat i o n al i t y
. . . and who is unable or unwilling to return to, and is unable or unwilling to avail himself

. . . of the protec tion of, that country beca use of perse cution or a well-founde d fea r of perse cution on acc ount of rac e, relig ion , n a ti o n a lity , membership in a particula r g roup, or political opinion . . . . ”

11Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
I NA § 1102(a) (42)( A), 8 U.S.C. § 1101(a) (42)( A). The asy lum app l i ca nt bear s the burden of
establishin g t h at he qualifies as a ref ug ee either because he has suffe red past perse cution or he has

a we ll-founded f

ear of future perse cution. Abay , 368 F.3d at 636-37.
Petitioners in the instant case asser ted only future perse cution, which require s an applicant to
establish that: (1) he [] “has a fea

r of perse cution in his [] country of nationality

. . . on acc ount of [] membership in a particula r social g roup, or political opinion;” (2) “The re is a reasonable possibili ty of sufferi n g s u ch p ersec ution if he [] wer e to return to that country ;” and (3) “He [] is una ble or unwilling to r eturn to, or avail himself [] of the protec tion of, that country beca use of suc h fea

r.” Gilaj v. Gonzales , 408 F.3d 275, 283 (6th Cir. 2005) (quoting 8 C.F.R. § 1208.13(b)( 2)(i)) (empha sis added)

. “A well-founde d fea r of perse cution does not require the applicant to show that he probably will be perse cuted if he is deporte d; ‘one can cer tainly have a well-founde d fea r of an event happening when there is less than a 50% chanc e of the occur renc e taking place .’” Perkov ic v. INS , 33 F.3d 615, 629 (6th Cir. 1994) (quoting INS v. Cardoza-Fonsec a , 480 U.S. 421, 431 (1987)).
A
Petitioners argue that the prior BI A and Third Circuit holdings in Lusingo under substantively
identical fac ts are corr ect and should be followed here , in keeping with the BI A’s own policy of

trea ting similarly -situated aliens similarly . We ag ree
. We note that petitioners acknow ledg ed below that the Third Circuit’s Lusingo decision is not binding in this Circuit. Nor is the BIA’s unpublished order in Lusingo following rema nd from the 4
Third Circuit binding here ; the BIA is bound only by prior BI A decisions deeme d prec edential, i.e., published. See 8 C.F.R. § 1003.1(g ), (i). Nonethele ss, we ag ree with petitioners that the BI A’s denial

Closing Arguments for Nove mber 1, 2006 Asy lum Hear ings at 18; A.R. 1768. 4
12Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
of their asy lum applications in the fac e of its g rant of Lusingo’ s application violated the fundame ntal leg al principle – and the BI A’s own policy – t h at simil arly -situated individuals should be trea ted 5
simil arly

. Both the I J and BIA acknow ledg ed that petitioners’ case s wer e “almost fac tually identical”

to Lusingo’ s. Courts have noted that “administrative ag encie s must apply the same basic rules to all
simil arly situated supplicants,” Henry v. I.N.S. , 74 F.3d 1, 6 (1st Cir. 1996), and “[t] he I NS must g ive

eac h asy lum case individualiz ed scrutiny , but it is a foundation of the rule of law that simil arly
situated individuals be trea ted simil arly

. . . .”). Njuguna v. Ashcroft , 374 F.3d 765, 771 n.4 (9th Cir. 2004), see also Zhang v. Gonzales , 452 F.3d 167, 173 (2d Cir. 2006) (“[I ]t is a fundame ntal principle
of justice that ‘similarly situated individuals be trea ted simil arly .”) (citing Njuguna , 374 F.3d at 771 n.4).
I n any event, as discussed below, we conclude that the deter mination that petitione rs we re ineligible for asy l u m wa s not supported by rea sonable, substantial, and probative evidenc e on the

rec ord consider ed as a

whole. See M

ikahilevitch v . I.N.S. , 146 F.3d 384, 388 ( 6th Cir. 1998).

B
Petitioners argue that afte r concluding that the y h a d a s u b je c ti v e ly

- g e nuine fea

r of perse cution,
the BIA err ed in denying their asy lum claims as objectively unrea sonable by supplanting expert and
fac t witness testimony

with its own non-expert opinion based on an alleg ed abse nce of perse cution of per sons not sim ilarly

situated with petitioners. Ag ain, we a g ree
. The B I A noted in this reg ard:

See e.g., In re L-G- , 21 I

. & N. Dec

. 89, 101 (B I A 1995), criticized on other g rounds in case s 5 including Casarez-Gutierrez v. A shcroft , 356 F.3d 1015 ( 9th Cir. 2004).
13Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
The rec ord does not indicate that the Tanzanian g overnme nt arr ests or detains former street children, or former student demonstrators, in reta liation for having embar rasse d the g overnme nt in the past,” and “[t] he rec ord con t ai n s no evidenc e that any TSA officia ls, parents of scouts, or scouts themselves have been subje cted to per secution

. . . We find im p lausible, and not supported by the evidenc e, the notion that the Tanzanian g overnme nt may perse cute t h e s couts who, as children, rema ined in the United States pursuant to an arr ang ement m ad e by their pare nts and a scoutmaster while not seeking any repe rcussions at all ag ainst the adults responsible for the
arr ang ement.[ ]

6
Given that petitioners’ experts Rajani and L andau wer e found cre dible and their decla ration
and aff idavit, which wer e essentially the same as they provided in Lusingo , wer e uncontrove rted, we 7
find the BIA’s rea soning difficult to compre hend. The I J and BI A substitut ed specula tion for expert testimony in finding tha t the Tanzanian g overnme nt’s poor trea tment of stree t children a

nd student
demonstrators is “lar g ely irrele vant” (I J at 16; J .A. 105) and “provide s littl e insight” (B I A at 3; J .A. 9) i nto how t he gover

nment would trea t the t hree peti t i o n er s , as well as in finding that it would be “implausible and not supported by evidenc e” for the Tanzanian g overnme nt to perse cute petitioners
while not perse cuting TSA officia ls, pare nts of t he scouts, or scouts themselves. No e vidence was
prese nted of any boy scout returning home to Tanzania in circ umstances like petitioners’. As to TSA
off i ci al s , the scouts prese nted expert evidenc e that the TSA and Tanzanian g overnme nt are
intertwined. Even if it wer e the case that the g overnme nt did not pe rsec ute TSA officia ls, tha t is of
littl e rele vance to the question whether the g overnme nt would perse cute three of the four s co u t s

J .A. 10. 6
See Rajani Dec lara tion, A.R. 1646-54; L andau aff id av i t , A.R. 1384-86. Petitioners also 7 prese nted a decla

ration of Richard Shilamba, a la wy er in Ta

nzania familiar with the hum an rights situation and ref

ug ee issues in Ta

nzania, J .A. 376-78.

14Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
whose names wer e published in the press as seeking asy lum in the United States, and who, acc ording

to Dr. Rajani, “commande d media attention” i n T an z an ia like no other individual case of rec ent

memory and wer e ref

err ed to as traitors in the press. Finally , that petitioners’ pare nts had appar ently

not been perse cuted by the g overnme nt afte r petitioners soug ht asy lum is of littl e weig ht beca use the

pare nts w ere not similarly situated or subject to risk simil ar to petitioners. Y ang Lin v. Holder , 320
F. App’x 428, 435 n.5 (6th Cir. 2009) (“ong oing safe ty of family member in pe titioner’s country of orig in undermines an application for asy lum when family members are ‘simil arly situated’ and are ‘subject to simil ar risk’”) citing Lim v. INS , 224 F.3d 929, 935 (9th Cir. 2000)). Put another way , “the
fac t that family members continue to reside unharme d in the home country may car ry littl e evidentiar

y weig ht if they do n o t share the trait that made the petitioner a targ et of perse cution.” See Sok v.
Mukase y , 526 F.3d 4 8 , 57 (1st Cir. 2008). There was no evidenc e that any of petitioners’ family
members living in Tanzania spoke ag ainst or in any way embar rasse d the Tanzanian g overnme nt, or expressed a ne g ative political opinion, much less left the c ountry and soug ht asy lum elsewher e.
The I J and BI A al s o fo u n d that the State Depa rtment’s 2007 Country Reports on Human Rights P rac tices i n Tanzania did not support petitioners’ claim. As noted by the I J /BI A, the re port

states that there wer e no politically -motivated killings or repor ts of po l i t i ca l l y -motivated disappea ranc es, that political opponents are allowed unrestric ted acc ess to the media, and that there

wer e numer ous instances of strongcriticism of national lea ders in the pr ess.
Howeve r, the 2007 Report also states that “on se vera l occa sions security forc es used letha l
forc e ag ainst citizens, including persons in custody ,” “Police and prison g uards used excessive forc e
ag ainst inmates or suspects, at times, resulting in death,” and that prison conditions “re mained harsh
15Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
and life threa tening

. Disease s wer e common and resulted in numerous deaths in prisons

. . . the leading cause s
. . . wer e malaria , tuberc ulosis, HI V/AI DS, choler a, and diseases rela ted to poor
sanitation.” Fur

ther, the repor

t noted, “the g overnme nt acknow ledg ed sever e problems of

o v er cr owding , leng thy pretria l detention of prisoners, and holding juveniles toge ther with adu l t prisoners.” The repor

t rec og nized that “The constitution prohi b i t s arbitra ry arr est and detention;
howeve r, both wer e p ro b l em s .” Reg arding fre edom of speec h and the press, the repor t noted that

g overnme nt restric tions on fre edom of speec h “have ease d” under t he Kikwete administration. Finally , the repor

t stated reg arding g overnme nt corr uption and transpar ency , “De spite improvements
in the past deca de, corr

uption rema ined a perva sive problem throug hout the g overnme nt

. . . . There
was little acc ountability

in most gover

nment entities.” A.R. 680-702.
The BIA relied on a selec t f ew portions of the Country Report in finding that the Report did

not support petitioners’ asy lum applications. The Report as a whole does not undermine petitioners’
claim of future perse cution. The 2007 Report does indicate that there wer e improvements in cer tain

are as since the ear ly 2000s; howeve r, when rea d as a whole, these few incre mental advanc es do not 8

sug g est that persons who embar rass the Tanzanian gove rnm ent i n the i nterna tional press would be less harshly

trea ted than petitioners’ experts attested.

See 2001 Country

Report, Pet’rs Suppl. App. at 1301. 8
16Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
C Finally , we consider the Gover nment’s claim that the administrative decisions are supported by substantial evidenc e bec ause pe titioners admitted they failed to produc e evide nce suppor ting a n objective ba sis for their fe ar of perse cution.
At the November 2006 remova l proce eding s, petitioners wer e asked whether they had
documentar

y evidenc e to corr oborate that, despite the passag e of more than five y ear s since they left
the J ambore e, they would be perse cuted if returne d to Tanzania. The scouts testified that nothing had chang ed in Tanzania and t h at p er s o n s who wer e deporte d or returne d to Tanzania wer e jailed. Although the scouts provided no additional documentar y evidenc e, t heir experts’ aff idavits and 9
decla rations corr oborate d that their fea r o f f u tu r e p erse cution was objectively rea sonable. Petitioners’ experts’ aff

idavits and decla

rations strong ly supported that there is a high likelihood that petitioners
would be perse cuted if returne d to Tanzania. The Gover nment prese nted no contra ry expert evidenc e,
and its claim that petitioners failed to produce evidenc e su p p o rt i n g that they objectively fea red

perse cution fails.
V
We conclude that the deter minations that petitioners wer e ineligible for asy lum and prese nted
in s u f f ic ie n t c o r r oborative evidenc e are unsupported by rea sonable , s u b s ta n ti a l, a n d p r o b a ti v e e v id e n c e

on the rec ord considere d as a whole. See Mikhailev itch , 146 F.3d at 388. Acc ording ly , we rema nd
to the BIA for f

urther pr ocee dings c onsistent with thi s opinion.

See 11/1/06 Hrg - A.R. 654-56 (Kieg emwe) ; 535-36, 545-48, 552 (Tembo) ; 581-82, 596-97, 9 600-601 (L

uambano)

. 17Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
Julia Sm ith Gibbons, Circuit Judge, concurring. I fully concur with the conclusions of the majority opinion but write separ ately to emphasize a couple of points that are particula rly important
to my rea soning. First, the rec ord in these case s consists only of evidenc e prese nted by Kieg emwe, Luambano,
and Tembo. Thus, when the BIA and the I J conclude d that the appellants had not e stablished that a

rea sonable person in their circ umstances would fea r perse cution if returne d to Tanzania, they did not
do so based on e vidence contra ry to that presente d by

appellants. And appellants wit hout question

prese nted evidenc e that supported the objective component of their asy lum claims. Given this rec ord,
examination of the rea soning utiliz ed by the BI A in reje cting the claims is critica l to asce rtaining
whether the BIA’s finding s are supported by substantial evidenc e and whether any re as o n ab le adjudicator

would be compe lled to conclude to the c ontrary

. The BIA’s analy sis larg ely consisted of reje cting an analog y made by appellants’ expert and
embra cing an analog y of its own. I nitially , the BI A found inapt the peti t i o n er s ’ an alogy to street
children of Tanzania who s u ff er go vernme nt reta liation for causing embar rassment. The BI A,
howeve r, was car eful not to “misinterpre t” the analog y to street children as the Third Circuit
deter mined it had in Lusingo’ s case
. Rather than reje cting the analog y beca use petitioners wer e not

street children, as it had done previou sly , the BI A reje cted the analog y to “individuals who have
embar rasse d the g overnme nt” as too broad to be persua sive. Then, the BI A found apt an analog y to the petit ioners’ parents who had suffere d no conseque nce from t h e petiti oners’ actions. The Third
Circuit specific ally conclude d that lack of conseque nce to the pare nts was insignifica nt in Lusingo’ s

18Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder

case
. But the BIA failed to compre hend what the Third Circuit rec og nized—that petitioners’ pare nts

wer e in a ve ry

distinct posit ion from petitioners. Despite its discussion of the ana logie s to stre et children and to pe titioners’ pare nts, the BI A reje cted the most instructive analog y available —L usingo. This is not to say that the BI A was require d

to follow the Third Circuit’s prec edent. See Mirditaj v. Ashcr o f t , 116 F. App’x 733, 735 (6th Cir. 2004) (“While ‘[t] he BI

A is require d to follow court of ap p ea l s p recede nt within the g eog raphic al
confine s of the rele vant circ uit,’ the prec edent of the [out side circ uit] is not binding on the BI A in a

case orig inating within the S ix th Circuit.”); see also De la Rosa v. U.S. Att’y Ge n. , 579 F.3d 1327,
1336 (11th Cir. 2009) (“[R ]eliance on unpublished BI A decisio n s is misplaced as the BI A accords

no prec edential value to its unrepor ted decisions.” (citing Matter of Zangwi ll , 18 I

. & N. Dec

. 22, 27 (B I A 1981)))

. Stil l, g iven its analy tic approa ch, the BI A’ s fa i l u re t o deal with the identical
circ umstances of

Lusingo a

nd the appe llants before us now is puzz ling.
L ike the Third Circuit in Lusingo , we find the BI A’s rea soning unsound—so unsound that it

cannot be said to be based on substantial evidence . I ndeed, a ll the evidence points to a c onclusion
that appellants did establish the objective component of their asy lum claims, and the BI A’s rea soning fails to justify

its rejection of the evidenc e. Under these circ umstances, a ny rea sonable a djudicator would be compe lled to ag ree that appellants ha d supported their c laim. Second, the BI A’s failure to explain it s differ ential treatment of Lusingo a nd the appe llants
befor e us is troubling. The BIA has rec o gn i z ed t h e principle that simil arly situated applicants for

asy lum are to be trea ted simil arly , see Perkov ic v. I.N.S. , 33 F.3d 615, 621 (6th Cir. 1994), but in this

case near ly identical applicants rec eived opposite results. I n 2005, afte r the Third Circuit’s reve rsal
19Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
of the orig inal BIA decision, Fikiri Lusingo was g rante d asy lum. The onl y materia l distinction
betwee n the petitioners today and L usingo then is the passag e of time. I ndeed, the arguments broug ht
befor e the Third Circuit hardly differ from those befor e our court. Surely , responsible consideration
of these claims would hav e required the articula tion of some basis for differ entiation other than a
reminder that the BIA was not require d to follow the Third Circuit. One would hope that in the future
the B I A might se ek consistenc y of re sult in keeping with fundamenta l fairne ss.

20Nos. 09-3816, 09-3817, 09- 3818

Kiegemwe, e t al. v. Holder
P aul L. Maloney, District Judge, concurring. I fully concur with J udg e Whit e’s opinion.
I writ e separ ately to join J udg e Gibbons’ poigna nt observa tions conce rning the Depa rt m en t o f
J ustice’s litigation stance in the instant ca ses.
Mr. Lusingo was g rante d asy lum by the BI A near ly six y ear s ag o. Surely , the mere happensta nce that appe l l ants rema ined in Michig an and Lusingo moved to the Commonwealth of Pennsy lvania oug ht make no differ ence on a matter as g rave as n ea rl y i d entical asy lum petitions.
Perkovi c v
. I

. N. S

. , 33 F3d 615, 621 (6th Cir. 1994). Recog nizi ng that these decisions are solely

rese rved to the sound e x erc ise of discre tion of the Executive Br anch, so it is.

21