Case: Zubeda v. Ashcroft

02-02868 | U.S. Court of Appeals for the Third Circuit

Filed Date: Dec. 17, 2002

Closed Date: Oct. 3, 2003

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Case Summary

The Petitioner in this suit was a citizen of Congo, who alleged that she was gang raped and persecuted there as a result of membership in the Bembe tribe. She sought asylum in the U.S., but in February 2, 2001, an Immigration judge found her removable for violating the Immigration and Naturalization Act (8 U.S.C. §§ 1101 et seq.), because she lied about her immigrant intent when she entered the U.S., as well as using a fraudulent passport. However, the immigration judge ruled that under the United Nations Convention Against Torture, the petitioner could not be removed, because she demonstrated sufficient evidence that she was more likely than not to be detained and tortured upon removal to the Democratic Republic of Congo (DRC). The U.S. Department of Justice Office of Immigration Litigation appealed to the Bureau of Immigration Appeals (BIA).

On June 7, 2002, the BIA ruled that petitioner had not demonstrated sufficient evidence that she was likely to be detained upon arrival to the DRC. The BIA judge noted that the immigration judge failed to discuss any evidence that petitioner was likely to actually be detained upon arrival, but only stated that it was likely to occur. Petitioner then appealed to the U.S. Court of Appeals for the Third Circuit.

On June 23, 2003, the Court of Appeals (Judge Theodore McKee) vacated the judgment of the BIA, and remanded the case back to the immigration judge for rehearing. Judge McKee stated that the immigration judge had taken an inadequate form of "official notice" regarding the likelihood of petitioner's detention upon arrival, but the BIA's decision to disregard such notice was erroneous. Additionally, the Court of Appeals ruled that the standard for determining credibility should be lower for an applicant for asylum who has language difficulties and is recalling traumatic memories. The court criticized the BIA for its approach to the case, and noted, as well, that "inasmuch as the government has also agreed to allow [petitioner] to raise the issue of her membership in the Bembe tribe on remand, the Immigration Judge will also be able to consider any impact [petitioner's] tribal identity may have on her claim for asylum, withholding of deportation, or relief under the Convention Against Torture." 333 F.3d 463.

On September 24, 2013, the Circuit Court denied respondent's petition for rehearing before the original panel. The court issued a mandate on October 2 and returned the records on October 3. We weren't able to recover the documents to review the content of that mandate.

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Summary Authors

Kristen Sagar (4/13/2009)

Dan Osher (5/31/2013)

Jennifer Bronson (11/25/2013)

People

For PACER's information on parties and their attorneys, see: https://www.courtlistener.com/docket/23784/parties/zubeda-v-atty-gen-usa/

Judge(s)

Hochberg, Jerome (District of Columbia)

Attorney for Plaintiff

Bernstein-Baker, Judi (Pennsylvania)

Feinberg, Jonathan H. (Pennsylvania)

Gansallo, Ayodele A (Pennsylvania)

Attorney for Defendant

McAdams, John M. Jr. (District of Columbia)

Judge(s)

Hochberg, Jerome (District of Columbia)

McKee, Theodore Alexander (Pennsylvania)

Smith, David Brooks (Pennsylvania)

Attorney for Plaintiff

Bernstein-Baker, Judi (Pennsylvania)

Feinberg, Jonathan H. (Pennsylvania)

Gansallo, Ayodele A (Pennsylvania)

Attorney for Defendant

McAdams, John M. Jr. (District of Columbia)

McCallum, Robert D. Jr. (District of Columbia)

Norwood, Anthony W. (District of Columbia)

Paddack, Stacy S. (District of Columbia)

Scadron, Terri J. (District of Columbia)

Attorney Contact Information via CourtListener

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Documents in the Clearinghouse

	Document
02-02868	Brief of Petitioner	Jan. 14, 2003	Jan. 14, 2003 Pleading / Motion / Brief
02-02868	Brief for Respondent	Feb. 26, 2003	Feb. 26, 2003 Pleading / Motion / Brief
02-02868	Reply Brief of Petitioner	March 12, 2003	March 12, 2003 Pleading / Motion / Brief
02-02868	Order	June 23, 2003	June 23, 2003 Order/Opinion 333 F.3d 463

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Docket

See docket on RECAP: https://www.courtlistener.com/docket/23784/zubeda-v-atty-gen-usa/

Last updated Feb. 10, 2026, 8:02 p.m.

Description	Date	Link Date / Link
Agency Case Docketed. Petition (rev) filed by Takky Zubeda. Service made on 7/8/02. USCA Receipt No. 43994 and Receipt Date 07/08/02. (CMH) [Entered: 07/08/2002 03:39 PM]	July 8, 2002	July 8, 2002
APPEARANCE from Attorney Terri J. Scadron on behalf of Respondent Atty Gen USA, filed. (CMH) [Entered: 07/16/2002 01:41 PM]	July 16, 2002	July 16, 2002
APPEARANCE from Attorney John M. McAdams on behalf of Respondent Atty Gen USA, filed. (CMH) [Entered: 07/16/2002 01:45 PM]	July 16, 2002	July 16, 2002
APPEARANCE from Attorney Judith Bernstein-Baker on behalf of Petitioner Takky Zubeda, filed. (CMH) [Entered: 07/18/2002 11:58 AM]	July 17, 2002	July 17, 2002
DISCLOSURE STATEMENT on behalf of Petitioner Takky Zubeda, filed. (CMH) [Entered: 07/18/2002 12:08 PM]	July 17, 2002	July 17, 2002
DOCKETING STATEMENT on behalf of Takky Zubeda, received. (CMH) [Entered: 07/18/2002 12:14 PM]	July 17, 2002	July 17, 2002
MOTION by Petitioner to stay deportation/removal pending resolution of the petition for review, filed. Answer due 7/31/02. Certificate of Service dated 7/17/02. (SLC) [Entered: 07/19/2002 03:14 PM]	July 18, 2002	July 18, 2002
ADMINISTRATIVE RECORD received. (CMH) [Entered: 09/18/2002 03:52 PM]	Sept. 13, 2002	Sept. 13, 2002
ORDER (Scirica, Authoring Judge and Barry, Circuit Judges) granting motion for a stay of removal pending disposition of the petition for review. The Clerk is directed to enter a briefing schedule and to calendar this case for presentation to a merits panel. Request for extension of time by the parties will not be considered absent extraordinary circumstances, filed. BPS-21 (CMH) [Entered: 11/19/2002 01:46 PM]	Nov. 19, 2002	Nov. 19, 2002
ADMINISTRATIVE RECORD filed. (CMH) [Entered: 11/19/2002 02:04 PM]	Nov. 19, 2002	Nov. 19, 2002
BRIEFING NOTICE ISSUED. Petitioner brief due 12/30/02. (CMH) [Entered: 11/19/2002 02:10 PM]	Nov. 19, 2002	Nov. 19, 2002
Certified copy of Order sent to agency. (CMH) [Entered: 02/24/2003 11:07 AM]	Nov. 19, 2002	Nov. 19, 2002
Petitioner Takky Zubeda verbally granted an extension of time until 1/13/03 to file brief pursuant to LAR 31.4. (NMB) [Entered: 12/18/2002 03:15 PM]	Dec. 18, 2002	Dec. 18, 2002
Letter from Petitioner Takky Zubeda confirming extension of time pursuant to LAR 31.4 with service on opposing counsel. Service Date 12/19/02. (NMB) [Entered: 02/07/2003 02:38 PM]	Dec. 20, 2002	Dec. 20, 2002
APPEARANCE from Attorney Jonathan Feinberg on behalf of Petitioner Takky Zubeda, filed. (CMH) [Entered: 01/10/2003 10:06 AM]	Jan. 9, 2003	Jan. 9, 2003
APPEARANCE from Attorney Ayodele Gansallo on behalf of Petitioner Takky Zubeda, filed. (CMH) [Entered: 01/13/2003 11:01 AM]	Jan. 13, 2003	Jan. 13, 2003
BRIEF/APPENDIX on behalf of Petitioner Takky Zubeda. Pages: 44, Copies: 10, Word Count: 11,379, Delivered by mail, filed. Certificate of service dated 1/13/03. (TE) [Entered: 01/14/2003 12:44 PM]	Jan. 13, 2003	Jan. 13, 2003
APPENDIX on behalf of Petitioner Takky Zubeda. Copies: 4, Volumes: 3, Delivered by mail, filed. Certificate of service dated 1/13/03. (Volume 1 of the appendix is attached to the brief). (TE) [Entered: 01/14/2003 02:12 PM]	Jan. 13, 2003	Jan. 13, 2003
APPEARANCE from Attorney Stacy S. Paddack on behalf of Respondent Atty Gen USA, filed. (CMH) [Entered: 02/10/2003 02:33 PM]	Feb. 10, 2003	Feb. 10, 2003
APPEARANCE from Attorney Terri J. Scadron on behalf of Respondent Atty Gen USA, filed. (CMH) [Entered: 02/10/2003 02:38 PM]	Feb. 10, 2003	Feb. 10, 2003
CALENDARED for Thursday, April 3, 2003. (MAC) [Entered: 02/19/2003 10:48 AM]	Feb. 19, 2003	Feb. 19, 2003
Unopposed Motion by Respondent Atty Gen USA for extension of time to file answering brief until 2/25/03, filed. Answer due 02/26/03. Certificate of Service dated 2/14/03. (CMH) [Entered: 02/24/2003 01:25 PM]	Feb. 19, 2003	Feb. 19, 2003
APPEARANCE from Attorney Anthony W. Norwood on behalf of Respondent Atty Gen USA, filed. (DMM) [Entered: 06/20/2003 10:17 AM]	Feb. 26, 2003	Feb. 26, 2003
BRIEF on behalf of Respondent, Copies: 10, Pages: 29, Delivered by mail, received. Certificate of service date 2/25/03. (Received for the information of the Court only). (MCW) [Entered: 08/22/2007 03:34 PM]	Feb. 26, 2003	Feb. 26, 2003
REPLY BRIEF on behalf of Petitioner Takky Zubeda. Copies: 10, Delivered by mail, received. Certificate of service dated 3/12/03. (TE) [Entered: 07/23/2003 10:01 AM]	March 12, 2003	March 12, 2003
ARGUED Thursday, April 3, 2003 Panel: McKee, Smith, Circuit Judges and Hochberg, District Judge. (U. S. District Judge for the District of New Jersey, sitting by designation.) Counsel for Petitioner: Jonathan Feinberg, Esq. and Counsel for Respondent: Stacy Paddack, Esq. (MAC) [Entered: 04/03/2003 03:39 PM]	April 3, 2003	April 3, 2003
PUBLISHED PRECEDENTIAL REPORTED OPINION (McKee, Authoring Judge, Smith, Circuit Judges and Hochberg, District Judge), filed. The Honorable Faith Hochberg, District Judge of the United States District Court for the District of New Jersey, sitting by designation. (CMH) [Entered: 06/23/2003 03:19 PM]	June 23, 2003	June 23, 2003
JUDGMENT,filed. Ordered and Adjudged by this Court the decision of the Board of Immigration Appeals is hereby vacated and the case is remanded to the Immigration Judge for clarification of whether or not he was invoking the doctrine of administrative notice regarding the likelihood of Zubeda's detention if removed to the DRC. Petitioner will be able to raise a new claim for relief based upon her membership in the Bembe tribe group on remand. (CMH) [Entered: 06/23/2003 03:24 PM]	June 23, 2003	June 23, 2003
ORDER (Clerk) It is hereby Order that the June 23, 2003 opinion and judgement of the Court are hereby Amended to reflect that the petition was argued on April 3, 2003 rather than April 1, 2003, filed. (CMH) [Entered: 06/23/2003 03:37 PM]	June 23, 2003	June 23, 2003
APPEARANCE from Attorneys Michelle E. Gorden and Donald E. Keener on behalf of Respondent Atty Gen USA, filed. (CMH) [Entered: 07/30/2003 02:31 PM]	July 30, 2003	July 30, 2003
MOTION by Respondent Atty Gen USA for a 30 day extension of time to file petition for rehearing, filed. Answer due 08/11/03. Certificate of Service dated 7/29/03. (CMH) [Entered: 07/31/2003 10:30 AM]	July 30, 2003	July 30, 2003
ORDER (Clerk) granting Respondent's motion for extension of time to file petition for rehearing. Respondent's petition for rehearing shall be filed and served on or before September 8, 2003, filed. (CMH) [Entered: 08/05/2003 08:45 AM]	Aug. 5, 2003	Aug. 5, 2003
RESPONSE filed by Petitioner Takky Zubeda in opposition to motion for extension of time to file petition for rehearing. Certificate of service dated 8/8/03. (CMH) [Entered: 08/13/2003 10:44 AM]	Aug. 11, 2003	Aug. 11, 2003
ORDER (Clerk) No action will be taken on Petitioner's response in opposition. By Clerk Order dated August 5, 2003, the Clerk had granted Respondent's Motion for Extension of Time to File a Petition for Rehearing. Pursuant to F.R.A.P. 279 (b), "(t)imely opposition filed after the motion is granted in whole or in part does not constitute a request to reconsider, vacate or modify the disposition; a motion requesting that relief must be filed", filed. (CMH) [Entered: 08/15/2003 09:40 AM]	Aug. 15, 2003	Aug. 15, 2003
MOTION by Petitioner Takky Zubeda to Vacate Clerk's Order dated August 5, 2003, filed. Answer due 08/18/03. Certificate of Service dated 8/5/03. (CMH) [Entered: 08/25/2003 11:26 AM]	Aug. 25, 2003	Aug. 25, 2003
APPEARANCE from Attorney Timothy P. McIlmail on behalf of Respondent Atty Gen USA, filed. (CMH) [Entered: 09/08/2003 02:43 PM]	Sept. 8, 2003	Sept. 8, 2003
PETITION by Respondent for rehearing before original panel, Certificate of service dated 9/5/03. (CMH) [Entered: 09/10/2003 03:14 PM]	Sept. 8, 2003	Sept. 8, 2003
ORDER (McKee, Authoring Judge, Smith, Circuit Judges and Hochberg, District Judge) denying Respondent's petition for rehearing before original panel, filed. The Honorable Faith Hochberg, District Judge of the New Jersey, sitting by designation. (CMH) [Entered: 09/24/2003 10:54 AM]	Sept. 24, 2003	Sept. 24, 2003
MANDATE ISSUED, filed. (CMH) [Entered: 10/02/2003 11:17 AM]	Oct. 2, 2003	Oct. 2, 2003
RECORD RETURNED. Administrative Record (LM) [Entered: 10/03/2003 01:54 PM]	Oct. 3, 2003	Oct. 3, 2003