Henri Kamenga Ndibu, a Congolese undocumented immigrant, submitted a petition for a review of removal issued by the Board of Immigration Appeals, which affirmed the immigration judge’s decision that Ndibut had filed a frivolous application for asylum. This effectively made him ineligible for status adjustment.
Henri Kamenga Ndibu first entered the United States in September 2001, using a Canadian passport not belonging to him. After managing to evade detection by immigration officials for nearly 3 years, Ndibu filed an application for asylum in July 2004, withholding of removal, and protection under the Convention Against Torture (“CAT”). He claimed that he feared for his life under potential persecution upon returning to Congo for his political opinions.
In an affidavit submitted by Ndibu, he claimed he was living in the Democratic Republic of Congo in June 2003 when he was detained by government authorities for being a member of the Army of Victory Church and for joining the “Let us Save the Congo” movement.
Ndibu alleges he was held for 15 days, throughout which he was “endur[ing] severe mistreatments…sexual abuses imposed over us by the police officers, and other types of tortures.”
In September 2004, the Department of Homeland Security (“DHS”) finally caught up with Ndibu and placed him in removal proceedings under the grounds of being in the United States with no valid documentation (i.e. passport).
At his removal hearing, Ndibu repeated the claims stated in. In April 2006, the IJ affirmed Ndibu’s removal, concluding that he had failed to demonstrate that he had applied for asylum within a year of entering the United States. The IJ also cited Ndibu’s testimony of arriving in the U.S. in 20013 as lacking credibility, as well as his failure to provide other evidence to support his entry date in 2003.
In addition, the IJ concluded Ndibu had failed to show “a clear probability of persecution,” denying his claim for relief of removal. The IJ expounded on her decision, saying Ndibu failed to provide the credibility of his claim of “membership in the political organizations that he claimed to have belonged to.”
And lastly, the immigration judge denied Ndibu’s petition for relief under the Convention Against Torture, pointing out that Ndibu did not provide enough reason for the court to determine “that it would be more likely than not that [Ndibu] would be tortured if he were removed to the Democratic Republic of Congo.”
Ndibu would file for an appeal in April 2008, but the BIA affirmed the IJ’s denial of asylum, supporting her conclusion that Ndibu “failed to establish, through clear and convincing evidence, that his asylum application was filed within one year of his arrival in the United States.”
For the same reasons, the Fourth Circuit Court of Appeals denied Ndibu’s petition for review of removal.
If you or anyone you know is facing a case similar to this situation, don’t hesitate to get in touch with Lyttle Law Firm right away. Contact us at (512) 215.5225 to schedule a consultation.