Submitted April 16, 2014.
Petition for Review of an Order of the Board of Immigration Appeals.
For Boendi Limbeya, Petitioner: Matthew Lorn Hoppock, Dunn & Davison, Kansas City, MO.
For Eric H. Holder, Jr., Attorney General of the United States, Respondent: Sara Bayram, Karen Yolanda Drummond, Melissa Katherine Lott, Carl H. McIntyre, Melissa Lynn Neiman-Kelting, Senior Litigation Counsel, U.S. Department of Justice Civil Division, Office of Immigration Litigation, Washington, DC.
Before RILEY, Chief Judge, BENTON and KELLY, Circuit Judges.
KELLY, Circuit Judge.
Boendi Limbeya, a citizen of the Democratic Republic of Congo (DRC), petitions for review of an order of removal from the Board of Immigration Appeals (BIA). Limbeya filed an application for asylum in 2005. Following a hearing, an Immigration Judge (IJ) found his application frivolous, denied all forms of relief, and ordered him removed to the DRC. The BIA agreed, upholding the removal order. We grant the petition for review, vacate the BIA's decision, and remand for further proceedings on the issue of frivolousness.
Limbeya was admitted to the United States in January 2005 on an F-1 student visa to attend Wichita State University. In August 2005, he submitted an asylum application. In his application, Limbeya explained that he had been a reporter for " Dignité Humaine" --a human rights organization--in the city of Uvira from 2002-2004. He said that several other activists within the group had been tortured by the Rally for Congolese Democracy (RCD) militia group as a result of their reporting. They killed his brother-in-law, a founder of the organization. Limbeya consequently fled to Burundi in 2004, eventually making his way to the United States. Limbeya said he fears being tortured and killed by RCD if he returns. At the bottom of Limbeya's application, it states " Eric Mafuidi" prepared it, and provides an address and phone number for this individual.
Following Limbeya's application, the Department of Homeland Security (DHS) issued Limbeya a Notice to Appear (NTA) for failing to maintain his non-immigrant student status when he ceased attending Wichita State. Though Limbeya explained he had stopped attending for financial reasons, he conceded removability. He sought adjustment of status based on his December 2008 marriage to a United States citizen; and in the alternative, he sought asylum, withholding of removal, Convention Against Torture (CAT) relief, and voluntary departure.
In September 2010, the IJ held a hearing on the merits of Limbeya's asylum application. Limbeya confirmed that the content of his application was true and correct. On cross-examination, he stated that he had received help from a man named Eric Mafuidi in filling out his application because he does not communicate well in English. Limbeya further ...