12-2455 Mutale v. Lynch BIA Straus, IJ A096 265 793 

### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT** 

## SUMMARY ORDER

**RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CI** **TATION TO A SUMMARY ORDER**  **FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER**  **IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY**  **ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 24 th** **day of November, two thousand fifteen.** 4 5 **PRESENT:** 6 **DEBRA ANN LIVINGSTON,** 7 **DENNY CHIN,** 8 **RAYMOND J. LOHIER, JR.,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **BAMBINO KANKUBA MUTALE,** 13 Petitioner**,** 14 15 **v. 12-2455** 16 **NAC** 17 **LORETTA E. LYNCH, UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent **.** 20

**_____________________________________** 21 22 **FOR PETITIONER: James E. Swaine, Hamden, CT.** 23 24 **FOR RESPONDENT: Stuart F. Delery, Assistant Attorney** 25 **General; Terri Scadron, Assistant** 26 **Director; Lisa M. Damiano, Trial** 27 **Attorney; Harris B. Hoffberg, Law** 28 **Clerk, Office of Immigration** 29 **Litigation, Civil Division, United** 30 **States Department of Justice,** 31 **Washington, D.C.** 32UPON DUE CONSIDERATION of this petition for review of a 1 decision of the Board of Immigration Appeals (“BIA”), it is 2 hereby ORDERED, ADJUDGED, AND DECREED that the petition for 3 review is DENIED. 4 Petitioner Bambino Kankuba Mutale, a native and citizen 5 of the Democratic Republic of Congo (“DRC”), seeks review of 6 a May 23, 2012, order of the BIA affirming the April 21, 7 2010, decision of Immigration Judge (“IJ”) Michael W. 8 Straus, denying his application for asylum, withholding of 9 removal, and relief under the Convention Against Torture 10 (“CAT”). In re Bambino Kankuba Mutale , No. A096 265 793 11 (B.I.A. May 23, 2012), aff’gNo. A096 265 793 (Immig. Ct. 12 Hartford Apr. 21, 2010). We assume the parties’ familiarity 13 with the underlying facts and procedural history of the 14

case. 15 Under the circumstances of this case, we have reviewed 16 both the IJ’s and the BIA’s opinions “for the sake of 17 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir. 18 2008) (internal quotation marks omitted). The applicable 19 standards of review are well-established. See Yanqin Weng 20 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Mutale does 21 not challenge the agency’s denial of CAT relief before this 22

2Court, and because he did not argue before the BIA that the 1 IJ erred by incorporating the findings and decision of the 2 Asylum Officer into his decision, and the government has 3 raised this failure to exhaust, we do not consider this 4 issue. See Lin Zhong v. U.S. Dep’t of Justice , 480 F.3d 5 104, 119-20, 124 (2d Cir. 2007). 6 “While consistent, detailed, and credible testimony may 7 be sufficient to carry the alien’s burden, evidence 8 corroborating his story, or an explanation for its absence, 9 may be required where it would reasonably be expected.” 10 Diallo v. INS , 232 F.3d 279, 285 (2d Cir. 2000). Before 11 denying a claim solely because of an applicant’s failure to 12 provide corroborating evidence, the agency must “explain 13 specifically, either in its decision or otherwise in the 14 record . . . why it is reasonable . . . to expect such 15 corroboration; and [] why . . . explanations for the lack of 16 such corroboration are insufficient.” Id . at 290. 17 Here, the IJ identified the evidence that Mutale needed 18 to corroborate his claim — documents regarding the 19 activities of the Katangan People’s Congress (“KPC”) in the 20 DRC and Zambia, that the DRC government sought to harm KPC 21 members, and that there was a massacre of KPC members in 22

3Lubumbashi in 1997 — and Mutale had an opportunity either to 1 provide that evidence or explain why it was not reasonably 2 available. Mutale neither provided this evidence to the IJ 3 nor explained why he was unable to provide such 4 documentation. In his appeal to the BIA, Mutale stated that 5 due to the generally violent conditions in the DRC, there 6 was minimal evidence regarding specific incidents, such as 7 the massacre in 1997. However, this does not explain why 8 there is no mention of the KPC at all in any of the country 9 condition reports, or why Mutale was unable to provide 10 personal statements from his wife or other KPC members 11 attesting to the organization’s activities and the 12 government’s campaign against the KPC. See id . at 285-86; 13 see also Majidi v. Gonzales , 430 F.3d 77, 80-81 (2d Cir. 14 2005). 15 Accordingly, because the agency identified the required 16 evidence and gave Mutale time to obtain it, and because 17 Mutale failed to explain why such evidence was unavailable, 18 the agency did not err in relying on his lack of 19 corroboration and determining that his testimony alone could 20 not establish a well-founded fear of future persecution on 21 account of a protected ground. See Majidi , 430 F.3d at 80- 22

481;Diallo , 232 F.3d at 285-86, 290. 1 Because Mutale was unable to establish a well-founded 2 fear of future persecution, the agency did not err in 3 denying his application for asylum, and he was necessarily 4 unable to meet the higher standard for withholding of 5 removal. See8 C.F.R. § 1208.13(b); Lecaj v. Holder, 616 6 F.3d 111, 119-20 (2d Cir. 2010); Ramsameachire v. Ashcroft , 7 357 F.3d 169, 178 (2d Cir. 2004). 8 For the foregoing reasons, the petition for review is 9 DENIED. As we have completed our review, any stay of 10 removal that the Court previously granted in this petition 11 is VACATED, and any pending motion for a stay of removal in 12 this petition is DISMISSED as moot. Any pending request for 13 oral argument in this petition is DENIED in accordance with 14 Federal Rule of Appellate Procedure 34(a)(2), and Second 15 Circuit Local Rule 34.1(b). 16
FOR THE COURT: 17 Catherine O’Hagan Wolfe, Clerk 18 19 20 21 22 23 24

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