Bob Nsimba v. Attorney General United States


PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 20-3565 _____________ BOB LUPINI NSIMBA, Petitioner v. ATTORNEY GENERAL UNITED STATES OF AMERICA ______________ On Petition for Review of a Final Order of the Board of Immigration Appeals (BIA – 1: A213-235-413) Immigration Judge: Pallavi S. Shirole ______________ Submitted Pursuant to Third Circuit L.A.R. 34.1(a): on July 12, 2021 ______________ Before: McKEE, GREENAWAY, JR., and RESTREPO, Circuit Judges. (Opinion Filed: December 22, 2021) Valentine A. Brown Duane Morris LLP 30 S. 17th Street Philadelphia, PA 19103 Counsel for Petitioner Dawn S. Conrad Stephen Finn United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, D.C. 20044 Counsel for Respondent ______________ OPINION OF THE COURT ______________ McKEE, Circuit Judge. Bob Lupini Nsimba petitions for review of a December 8, 2020 decision of the Board of Immigration Appeals affirming the Immigration Judge’s denial of his application for asylum. In affirming that decision, the BIA misapplied and misinterpreted controlling precedent and imposed requirements on those seeking relief that would require petitioners to first endure torture or arrest. Accordingly, for the reasons that follow, we will grant the petition for review, vacate the ruling of the BIA and remand for further proceedings consistent with this opinion. I. Background Nsimba was born in the Democratic Republic of the Congo (“DRC” or “Congo”) in 1992.1 His parents died when he was very young, and he was raised by his aunt.2 His wife and his two children still live in the DRC.3 Nsimba became actively involved in Congolese politics in 2011 when he joined the largest political party there, the Union for Democracy and Social Progress (“UDPS”).4 The UDPS opposed the policies of then- President Joseph Kabila. In 2018, when it became apparent that the head of the UDPS, Felix Tshisekedi, and Kabila were 1 AR 297. 2 Id. at 297–98. 3 Id. at 164. 4 Id. at 299. 2 conspiring to ensure that Tshisekedi would succeed Kabila in the upcoming 2018 elections, Nsimba left the UDPS. Upon leaving, he co-founded a political and social networking group named Liberté Congolaise, along with a man named Fabrice. The two formed the organization for the express purpose of opposing the presidential regime of Joseph Kabila.5 Nsimba was also an active participant in political demonstrations opposing Kabila and Tshisekedi. Tshisekedi did, in fact, succeed Kabila as president in an election in December 2018.6 Nsimba’s work in opposition to Tshisekedi included disseminating anti-government political materials and videos of peaceful protestors being shot by the ruling party.7 Nsimba also personally attended demonstrations where a protestor was shot because of his opposition to Kabila’s regime.8 In 2019, Nsimba began to be personally targeted for his protest activities. On June 30, 2019, after a demonstration in Kinshasa against the policies of newly elected President Tshisekedi, Nsimba learned that Fabrice disappeared after being arrested.9 Two days later, police came to Nsimba’s home to arrest him.10 However, Nsimba was not home when they came. After forcefully entering his …

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