Case: Zubeda v. Ashcroft

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.