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Malonga v. Holder

September 14, 2010

NOEL MALONGA, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review from the Board of Immigration Appeals.

The opinion of the court was delivered by: Melloy, Circuit Judge.

Submitted: January 14, 2010

Before MELLOY, SMITH, and COLLOTON, Circuit Judges.

Noel Malonga, a native and citizen of the Republic of the Congo ("the Congo"), petitions for review of an order of the Board of Immigration Appeals ("BIA") denying withholding of removal. He claims past persecution and a clear probability of persecution upon return on account of his ethnicity and political opinion. We grant the petition for review and remand for reconsideration of whether he faces a clear probability of persecution based on political opinion.

I.

A. Factual Background

In Malonga v. Mukasey, 546 F.3d 546 (8th Cir. 2008) ("Malonga I"), we described the basic facts of this case. We now revisit the factual background, first summarizing the relevant documentary evidence concerning the various regimes and conflicts in the Congo and then recounting the basis of Malonga's claim.

1. Situation in the Congo

The record paints the Congo as a country dominated by a series of totalitarian regimes punctuated, particularly in recent years, by violent conflict. In 1968, Marien Ngouabi led a military coup and held the presidency until his assassination in 1977. In 1979, Denis Sassou-Nguesso became president, which according to State Department reports, launched two decades of turbulent, single-party politics "bolstered by Marxist-Leninist rhetoric." Sassou-Nguesso is a northerner of Mbochi ethnicity.

In the 1990s, the country ostensibly transitioned to a multiparty democracy, but political stability remained elusive. Numerous opposition political parties were formed at the time, including the Mouvement Congolaise pour la Démocratie et le Dévélopment Intégral (Congolese Mouvement for Democracy and Integral Development, hereinafter "MCDDI"). In 1992, southerner Pascal Lissouba was elected president. Violent civil unrest subsequently broke out in June and November 1993 over the results of hotly disputed legislative elections. Risk of large-scale insurrection subsided after the parties accepted the decision of an international board of arbiters in February 1994. Lissouba attempted to eliminate Sassou-Nguesso's political-military faction as the country headed for a new round of elections in 1997, igniting four months of civil war. Sassou-Nguesso eventually seized the presidency, toppling the Lissouba government.

Fighting between forces loyal to Sassou-Nguesso and several southern rebel groups engulfed the country in 1998. The rebel militias included the Cocoyes, who supported Lissouba, and the Ninjas, who are of mostly Lari ethnicity and were affiliated with Bernard Kolelas,*fn1 the founder of the MCDDI. The conflicts were largely concentrated in the south, including the Pool region surrounding the capital of Brazzaville.

Civilians found themselves caught in the crossfire, subjected to both indiscriminate violence and instances of deliberate brutality by all factions. Undisciplined troops and security forces associated with the government reportedly detained, beat, raped, "disappeared," and killed civilians, arbitrarily searched homes, and engaged in widespread looting. Government allied-forces were also known to single out individuals, mostly southern men, for arrest and even death on suspicion that they supported the Ninjas or the Cocoyes. The record paints the rebels as little better. Militias, particularly the Ninjas and other groups based in the southern Pool region, executed civilians thought to back the government based on their ethnicity. The militias of the Lari ethnic group reportedly looted property, raped women, and killed civilians, even members of their own ethnicity. In all, the war left nearly a third of the population displaced and thousands dead.

The Sassou-Nguesso government signed a cease fire with most rebel groups in late 1999, leading to a measure of calm. For example, the State Department observed in its 2001 country conditions report that it had received no accounts of government violence toward southern ethnic groups in the previous year and that politically motivated disappearances and killings also ceased. Lissouba and Kolelas themselves were effectively forced into exile and tried in absentia for war crimes.

State Department country conditions reports and other articles in the record acknowledge the 1997--1999 conflicts exhibited ethnic overtones, and other courts have recognized many of the recent conflicts to be ethno-political in nature. See Passi v. Mukasey, 535 F.3d 98, 102--03 (2d Cir. 2008) (noting, for example, that Brazzaville and the Pool region exhibited what appeared to be some of the most severe ethnic and political violence); Mapouya v. Gonzales, 487 F.3d 396, 402 (6th Cir. 2007) ("Strong ethnic overtones are present in Congolese politics, and the 1997-1998 civil war was no different."). Documentary evidence suggests that political and the most significant inter-ethnic tension has split roughly along geographical lines, pitting northerners against the more prosperous southerners. State Department reports, however, also caution against oversimplifying the unrest, and politics more generally, as north versus south. Each leader-Sassou-Nugesso, Lissouba, and Kolelas-has drawn heavy support from his own ethnic group in his immediate entourage. Nevertheless, the reports advise that the correspondence between "ethnic-regional and political cleavages" was inexact and only approximate, and that actual support of the current and recent governments "included persons from a broad range of ethnic and regional backgrounds."

In 2002, the latest year represented in the record, media reports documented renewed conflict in southern Congo between government forces and the Ninjas following Sassou-Nguesso's re-election. The Ninjas attacked government military posts in the Pool region, allegedly responding to government plots to arrest the militia's leader. Civilians were once again swept up in the fighting and suffered abuses by both sides, though particularly by the government, including killings, rapes, abductions, looting, and other destruction of property.

2. Malonga's claims

Malonga is a native of the southern Pool region, and is of Lari ethnicity, a subgroup of the larger Kongo tribe. The Kongo account for approximately forty-eight percent of the country's population and constitute the main tribal group in the south. The Lari group can be identified by accent, dialect, and surname and are concentrated geographically in the Pool region.

Malonga is or has been a member of several political groups and parties.*fn2 Although several of Malonga's affiliations coincide with his ethnic-regional roots, the record also suggests a broader, pro-democracy motivation behind his nearly four decades of opposition to the regimes of three different presidents.

In 1971, at age fourteen, Malonga participated in a demonstration against the Ngouabi regime. According to Malonga, Sassou-Nguesso, who was then the chief-of-staff of the armed forces, sent the military to disperse the protest. Soldiers beat Malonga as they broke up the demonstration and he suffered injuries that required hospital treatment and left scars on his legs and back. In 1974, ...


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