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. CITATION 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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 24th 4 day of November, two thousand fifteen.

5

6 PRESENT:

7 DEBRA ANN LIVINGSTON,

8 DENNY CHIN,

9 RAYMOND J. LOHIER, JR.,

10 Circuit Judges.

11 _____________________________________

12

13 BAMBINO KANKUBA MUTALE,

14 Petitioner,

15

16 v. 12-2455

17 NAC

18 LORETTA E. LYNCH, UNITED STATES 

19 ATTORNEY GENERAL,

20 Respondent.

21 _____________________________________

22

23 FOR PETITIONER: James E. Swaine, Hamden, CT.

24

25 FOR RESPONDENT: Stuart F. Delery, Assistant Attorney

26 General; Terri Scadron, Assistant

27 Director; Lisa M. Damiano, Trial

28 Attorney; Harris B. Hoffberg, Law

29 Clerk, Office of Immigration

30 Litigation, Civil Division, United

31 States Department of Justice,

32 Washington, D.C.
1 UPON DUE CONSIDERATION of this petition for review of a

2 decision of the Board of Immigration Appeals (“BIA”), it is

3 hereby ORDERED, ADJUDGED, AND DECREED that the petition for

4 review is DENIED.

5 Petitioner Bambino Kankuba Mutale, a native and citizen

6 of the Democratic Republic of Congo (“DRC”), seeks review of

7 a May 23, 2012, order of the BIA affirming the April 21,

8 2010, decision of Immigration Judge (“IJ”) Michael W.

9 Straus, denying his application for asylum, withholding of

10 removal, and relief under the Convention Against Torture

11 (“CAT”). In re Bambino Kankuba Mutale, No. A096 265 793

12 (B.I.A. May 23, 2012), aff’g No. A096 265 793 (Immig. Ct.

13 Hartford Apr. 21, 2010). We assume the parties’ familiarity

14 with the underlying facts and procedural history of the

15 case.

16 Under the circumstances of this case, we have reviewed

17 both the IJ’s and the BIA’s opinions “for the sake of

18 completeness.” Zaman v. Mukasey, 514 F.3d 233, 237 (2d Cir.

19 2008) (internal quotation marks omitted). The applicable

20 standards of review are well-established. See Yanqin Weng

21 v. Holder, 562 F.3d 510, 513 (2d Cir. 2009). Mutale does

22 not challenge the agency’s denial of CAT relief before this

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1 Court, and because he did not argue before the BIA that the

2 IJ erred by incorporating the findings and decision of the

3 Asylum Officer into his decision, and the government has

4 raised this failure to exhaust, we do not consider this

5 issue. See Lin Zhong v. U.S. Dep’t of Justice, 480 F.3d

6 104, 119-20, 124 (2d Cir. 2007). 

7 “While consistent, detailed, and credible testimony may

8 be sufficient to carry the alien’s burden, evidence

9 corroborating his story, or an explanation for its absence,

10 may be required where it would reasonably be expected.” 

11 Diallo v. INS, 232 F.3d 279, 285 (2d Cir. 2000). Before

12 denying a claim solely because of an applicant’s failure to

13 provide corroborating evidence, the agency must “explain

14 specifically, either in its decision or otherwise in the

15 record . . . why it is reasonable . . . to expect such

16 corroboration; and [] why . . . explanations for the lack of

17 such corroboration are insufficient.” Id. at 290. 

18 Here, the IJ identified the evidence that Mutale needed

19 to corroborate his claim — documents regarding the

20 activities of the Katangan People’s Congress (“KPC”) in the

21 DRC and Zambia, that the DRC government sought to harm KPC

22 members, and that there was a massacre of KPC members in

3
1 Lubumbashi in 1997 — and Mutale had an opportunity either to

2 provide that evidence or explain why it was not reasonably

3 available. Mutale neither provided this evidence to the IJ

4 nor explained why he was unable to provide such

5 documentation. In his appeal to the BIA, Mutale stated that

6 due to the generally violent conditions in the DRC, there

7 was minimal evidence regarding specific incidents, such as

8 the massacre in 1997. However, this does not explain why

9 there is no mention of the KPC at all in any of the country

10 condition reports, or why Mutale was unable to provide

11 personal statements from his wife or other KPC members

12 attesting to the organization’s activities and the

13 government’s campaign against the KPC. See id. at 285-86;

14 see also Majidi v. Gonzales, 430 F.3d 77, 80-81 (2d Cir.

15 2005). 

16 Accordingly, because the agency identified the required

17 evidence and gave Mutale time to obtain it, and because

18 Mutale failed to explain why such evidence was unavailable,

19 the agency did not err in relying on his lack of

20 corroboration and determining that his testimony alone could

21 not establish a well-founded fear of future persecution on

22 account of a protected ground. See Majidi, 430 F.3d at 80-

4
1 81; Diallo, 232 F.3d at 285-86, 290. 

2 Because Mutale was unable to establish a well-founded

3 fear of future persecution, the agency did not err in

4 denying his application for asylum, and he was necessarily

5 unable to meet the higher standard for withholding of

6 removal. See 8 C.F.R. § 1208.13(b); Lecaj v. Holder, 616

7 F.3d 111, 119-20 (2d Cir. 2010); Ramsameachire v. Ashcroft,

8 357 F.3d 169, 178 (2d Cir. 2004).

9 For the foregoing reasons, the petition for review is

10 DENIED. As we have completed our review, any stay of

11 removal that the Court previously granted in this petition

12 is VACATED, and any pending motion for a stay of removal in

13 this petition is DISMISSED as moot. Any pending request for

14 oral argument in this petition is DENIED in accordance with

15 Federal Rule of Appellate Procedure 34(a)(2), and Second

16 Circuit Local Rule 34.1(b).

17 FOR THE COURT:

18 Catherine O’Hagan Wolfe, Clerk

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