NOT RECOMMENDED FOR PUBLICATION File Name: 23a0444n.06
Case No. 22-3851
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
FILED Oct 13, 2023 ) JONAS NSONGI MBONGA, DEBORAH S. HUNT, Clerk ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) ) BOARD OF IMMIGRATION MERRICK B. GARLAND, Attorney General, ) APPEALS Respondent. ) ) OPINION
Before: McKEAGUE, READLER, and DAVIS, Circuit Judges.
McKEAGUE, Circuit Judge. Petitioner Jonas Nsongi Mbonga, a native and citizen of
the Democratic Republic of the Congo, seeks review of a Board of Immigration Appeals (“Board”)
order denying his motion to reopen removal proceedings. We previously affirmed the Board’s
denial of Nsongi Mbonga’s applications for withholding of removal and protection under the
Convention Against Torture. Mbonga v. Garland, 18 F.4th 889, 892 (6th Cir. 2021). For the
reasons stated below, we now DENY Nsongi Mbonga’s petition for review of his motion to reopen
proceedings.
I. BACKGROUND
Nsongi Mbonga fled the Democratic Republic of the Congo (DRC) under, as we previously
noted, trying circumstances. Mbonga, 18 F.4th at 892. He was born in the DRC on January 20,
1990. He participated in an athletic club, where he practiced martial arts. The athletic club was Case No. 22-3851, Mbonga v. Garland
sponsored by a bodyguard for then-president of the DRC, Joseph Kabila. The bodyguard—also
the president of a youth league for President Kabila’s political party, the People’s Party for
Reconstruction and Democracy (PPRD)—recruited Nsongi Mbonga for a specific job: to be a
member of a youth group aimed at creating “chaos” in the opposition party in the DRC, the Union
for Democracy and Social Progress (“UDPS” in the French-language abbreviation). Petitioner’s
Br. 4. Nsongi Mbonga refused to participate in organized disruption of the opposition party and
even succeeded in convincing other young members of the athletic club to reject similar
recruitment attempts. Within several months, government forces attacked Nsongi Mbonga,
allegedly for his refusal to associate with the ruling party’s disruption campaign. This attack
spurred his interest in joining the opposition UDPS party.
In July 2014, uniformed police officers approached Nsongi Mbonga while he was returning
home from church. The officers confiscated his belongings, discovered his UDPS membership
card, and beat him severely. After spending days in a medical center, Nsongi Mbonga began to
fear for his safety and his life. With encouragement from his family, he fled to a town in Angola
near the Congolese border. He returned to the DRC—specifically, Kinshasa—in January 2015 to
be closer to his family and to attend a protest welcoming the return of the president of the UDPS
back to the country. Nsongi Mbonga appeared at the protest wearing UDPS clothing and carrying
a UDPS banner.
Soon after, in February 2015, police arrested Nsongi Mbonga and four others. The police
took the five people to a detention center, where Nsongi Mbonga says he was tortured and beaten
for his failure to join the governing political party. After being released, Nsongi Mbonga fled to
his parents’ village in Central Congo, a province in the DRC. Police continued to search for him
in Kinshasa, eventually discovering his location through continued interrogation of his family.
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Fearing for his life, Nsongi Mbonga again fled to Angola, where he remained for roughly three
months before traveling to Brazil. In July 2018, Nsongi Mbonga completed a long journey through
South and Central America to reach the United States. Mbonga, 18 F.4th at 893.
Two months later, the Department of Homeland Security (DHS) initiated removal
proceedings against Nsongi Mbonga. He applied for asylum, withholding of removal, and relief
under the Convention Against Torture. After a January 2019 hearing, an immigration judge denied
relief on all claims, citing vague concerns about Nsongi Mbonga’s credibility. Id. In July, the
Board of Immigration Appeals reversed, finding that the immigration judge erred by failing to
make an explicit credibility determination.
On remand in November 2019, a different immigration judge again denied relief, this time
finding explicitly that Nsongi Mbonga did not credibly allege a fear of past persecution. Further,
because of relevant intervening events in the DRC, the judge indicated that he would have denied
relief even if he had found Nsongi Mbonga credible. In December 2018, during Nsongi Mbonga’s
removal proceedings, Félix Tshisekedi, the leader of the opposition UDPS party—the party to
which Nsongi Mbonga belonged—was elected to the presidency of the Democratic Republic of
the Congo. Mbonga, 18 F.4th at 893. Because the UDPS became the ruling party in the DRC, and
because it entered into a power-sharing arrangement with President Kabila’s PPRD party, the
judge found it unlikely Nsongi Mbonga would be targeted for harm by PPRD members if he were
to return to the country. As such, the judge found that DHS had demonstrated by a preponderance
of the evidence that Nsongi Mbonga no longer had a well-founded fear of persecution in the DRC
for his political opinions. Nsongi Mbonga again appealed to the Board.
This time, the Board dismissed the appeal. In its November 2020 opinion, the Board
assumed Nsongi Mbonga’s credibility and upheld the immigration judge’s finding that changed
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conditions in the DRC eliminated any fear Nsongi Mbonga could have of political persecution. Id.
The Board further upheld the denial of Nsongi Mbonga’s claims for withholding of removal, relief
under the Convention Against Torture, and humanitarian asylum. Id. Nsongi Mbonga appealed to
this Court.
In November 2021, we affirmed. We held that, even assuming Nsongi Mbonga’s
credibility, the Board did not commit any error in holding that governmental and political changes
in the DRC eliminated Nsongi Mbonga’s fear of political persecution. Id. at 894. Because claims
for withholding of removal and relief under the Convention Against Torture require a similar
showing of a fear of future persecution, we affirmed the Board’s denial of those claims too. Id. at
898–99. Finally, we concluded that Nsongi Mbonga had not adequately raised a “humanitarian-
asylum” claim—which does not require a well-founded fear of future persecution—in his briefing
before this Court. Id. at 898; see also 8 C.F.R. § 1208.13(b)(1)(iii) (describing how an applicant
may be granted asylum in the absence of a well-founded fear of persecution by demonstrating the
“severity of the past persecution” or by showing “a reasonable possibility” that they may suffer
“other serious harm” in their home country); Nozadze v. Sessions, 740 F. App’x 476, 483 (6th Cir.
2018).
While his appeal before this Court was pending, Nsongi Mbonga filed a motion to reopen
immigration proceedings before the Board in February 2021. He argued that he could provide
material and previously undiscoverable evidence of changed country conditions that would suffice
under 8 C.F.R. § 1003.2(c)(1) to reopen removal proceedings. In essence, Nsongi Mbonga argued
that, despite the presidential transition in the DRC, former President Kabila retained significant
power and influence over security forces, suggesting that Nsongi Mbonga might continue to face
recrimination should he return home. As support, he submitted two declarations from experts—
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one from Thomas Turner, a DRC specialist working at Amnesty International, and another from
Rachel Sweet, a global affairs scholar at the University of Notre Dame—describing the political
landscape in the DRC following President Kabila’s late-2018 loss to President Tshisekedi. He
further submitted a psychiatric report, a neurological report, a U.S. Department of State human
rights report on the DRC, news articles from throughout 2020 describing Congolese political
affairs following the 2018 election, and several affidavits attesting to the truth of certain claims
Nsongi Mbonga advanced during his initial proceedings.
The Board denied his motion. It found that Nsongi Mbonga had not demonstrated that any
of the evidence he sought to present on reopening was new and previously unavailable or
undiscoverable. Taking its November 2020 opinion as the latest date by which Nsongi Mbonga
could have raised new arguments or introduced new evidence, the Board found that none of the
evidence cited would have been previously unavailable within the meaning of 8 C.F.R.
§ 1003.2(c)(1). Nsongi Mbonga argued that he could provide sufficient previously undiscoverable
evidence of former President Kabila’s continued influence in the Congolese security forces to
justify reopening removal proceedings. The Board rejected this argument, noting that the
immigration judge acknowledged in the first February 2019 order that leadership in the DRC had
changed, indicating that Nsongi Mbonga was less likely to face political persecution than when he
had left the country. After the first remand, the new immigration judge further developed the
reasoning for rejecting Nsongi Mbonga’s arguments, finding that DHS had demonstrated that
country conditions had changed—from the 2018 election and subsequent power-sharing
arrangement—such that Nsongi Mbonga no longer had a well-founded fear of persecution.
The Board found that none of the evidence Nsongi Mbonga cited in his motion to reopen
suggested that any of the basic political conditions on which he relied in his initial claim had
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changed for the worse. The two expert affidavits, for example, were created after the Board’s prior
decision in November 2020 but discussed the election of President Tshisekedi in December 2018
and general political conditions over the following two years—all information that was
discoverable before the Board’s 2020 decision. The Board further acknowledged that two news
articles included facts that were previously unavailable, but it found that those facts—that
President Tshisekedi had ended his coalition with former President Kabila’s political party and
that continued tension existed between the two parties—lent support to DHS’s position that
President Tshisekedi had gained some strength in his political position. At minimum, the Board
found that the facts did not establish a material change regarding Nsongi Mbonga’s fear of future
harm.1 Finally, as to the medical declarations and other supporting affidavits, the Board held that
he had shown no reason why the additional evidence could not have been discovered previously.
The Board acknowledged that Nsongi Mbonga may have had limited opportunities to obtain
supporting evidence during his detention in the early months of his immigration proceedings. But
Nsongi Mbonga offered no reason why he could not have obtained the evidence in the months
following his release. Nsongi Mbonga now timely appeals the Board’s denial of his motion to
reopen.
II. STANDARDS OF REVIEW
We review the Board’s denial of a motion to reopen immigration proceedings for an abuse
of discretion. Gafurova v. Whitaker, 911 F.3d 321, 325 (6th Cir. 2018). The decision to grant or
deny a motion to reopen or reconsider is, by regulation, within the Board’s broad discretion.
8 C.F.R. § 1003.2(a), (c)(1); see also Santos-Zacaria v. Garland, 598 U.S. 411, 425 (2023); INS
1 Nsongi Mbonga claims that the Board “did not question” whether his evidence “was material to his asylum claim.” Petitioner’s Br. 8. In fact, the Board held that two news articles were not material to any change in Nsongi Mbonga’s fear of future harm. Admin. R. at 3. -6- Case No. 22-3851, Mbonga v. Garland
v. Doherty, 502 U.S. 314, 323 (1992) (assessing the Attorney General’s “broad discretion” to grant
or deny motions to reopen). The Board abuses its discretion when it denies a motion to reopen
without a rational explanation, inexplicably departs from established policies, or rests its decision
on an impermissible basis, such as invidious discrimination against a specific race or group.
Gafurova, 911 F.3d at 325. We may not reverse simply because we “would have decided the case
differently.” Lin v. Holder, 565 F.3d 971, 976 (6th Cir. 2009). We may only reverse under the
substantial-evidence standard, which requires that we uphold the Board’s administrative findings
of fact unless we find that “any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Zometa-Orellana v. Garland, 19 F.4th 970, 976 (6th
Cir. 2021); Gafurova, 911 F.3d at 325. We review questions of law de novo, but we give substantial
deference to the Board’s interpretations of the Immigration and Nationality Act, 8 U.S.C. § 1101
et seq., and its accompanying regulations. Kukalo v. Holder, 744 F.3d 395, 402 (6th Cir. 2011).
III. DISCUSSION
Nsongi Mbonga challenges the Board’s denial of his motion to reopen removal
proceedings. He is not before us now on the merits of the denial of his asylum, withholding of
removal, and Convention Against Torture claims, which we have already affirmed. See Mbonga,
18 F.4th at 892. Instead, he asks that we reverse the Board of Immigration Appeals on the
comparatively narrow ground that it erred in denying his motion to reopen. Because the Board did
not abuse its discretion, we cannot grant Nsongi Mbonga’s requested relief.
Nsongi Mbonga challenges the Board’s denial in three ways. He claims that the Board
(1) misinterpreted the regulation governing the reopening of Board proceedings, 8 C.F.R.
§ 1003.2(c)(1); (2) abused its discretion by finding that evidence he cited in his motion to reopen
was discoverable at his former hearing; and (3) engaged in impermissible appellate fact-finding
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by determining that none of his offered evidence suggested he was likely to suffer future harm.
None of these arguments succeeds.
Department of Justice immigration regulations govern Board procedures. A party to
removal proceedings may move to reopen proceedings after the Board has rendered a decision in
the matter. 8 C.F.R. § 1003.2(a). The party must state “new facts that will be proven at a hearing
to be held if the motion is granted.” Id. § 1003.2(c)(1). Importantly, a “motion to reopen
proceedings shall not be granted unless it appears to the Board that evidence sought to be offered
is material and was not available and could not have been discovered or presented at the former
hearing.” Id. The Board retains significant discretion to deny a motion to reopen “even if the party
moving has made out a prima facie case for relief.” Id. § 1003.2(a).
In sum, Nsongi Mbonga’s appeal concerns (1) whether the Board erred by considering
evidentiary exhibits created or available only after the November 2019 immigration judge hearing
but before the Board’s November 2020 decision, (2) whether the Board abused its considerable
discretion in determining that the evidence Nsongi Mbonga offered was either previously available
or immaterial to his claims, and (3) whether the Board engaged in impermissible appellate fact-
finding in violation of immigration regulations.
A. “Former Hearing”
As an initial matter, Nsongi Mbonga argues that the Board erred by misinterpreting the
regulation governing motions to reopen proceedings. Specifically, he argues that the Board
mistakenly interpreted “former hearing” to include the period during which his administrative
appeal was pending before the Board. In his view, the “evidentiary record closed” in his case at
his last appearance before an immigration judge, which occurred in November 2019. Petitioner’s
Br. 11. In denying his motion to reopen, the Board noted that “[s]ome of the reports and articles
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submitted with the motion were published and available while [Nsongi Mbonga’s] prior appeal
was still pending”—in other words, prior to the Board’s November 2020 decision. Admin. R. at 3.
As Nsongi Mbonga interprets the regulation, the Board must instead limit what can be considered
previously discoverable evidence to the evidence in existence before the last hearing before an
immigration judge. We disagree. But regardless of whether the Board misinterpreted “former
hearing,” we would still deny the petition because the Board correctly noted that none of the
information underlying the reports and articles supporting Nsongi Mbonga’s claim was previously
unavailable.
The Board did not err as a matter of law when it considered evidence that was published
during Nsongi Mbonga’s initial appeal. Keeping in mind that the Board is already entitled
substantial deference in its interpretation of immigration regulations, see Kukalo, 744 F.3d at 399,
this Court has declined to reopen or remand proceedings where “new” evidence—evidence created
or published after the last hearing before an immigration judge—was only “cumulative” of
evidence that had been offered earlier. See Solaka v. Wilkinson, 844 F. App’x 797, 802 (6th Cir.
2021). Where the information presented in a “new” article or report relies on incidents that were
already considered in different forms before either the Board or an immigration judge, the Board
has the power to assess whether that evidence was previously available for the purpose of appeal.
See id. This Court has similarly concluded affidavits were discoverable where they “should have
been available” to the petitioner before the Board’s—not the immigration judge’s—most recent
order. Qeraxhiu v. Gonzales, 206 F. App’x 476, 481 (6th Cir. 2006).
Nsongi Mbonga does not point to any precedent that requires us or the Board to interpret
“former hearing” to mean the point at which the evidentiary record before the immigration judge
closes. Indeed, we think such a narrow interpretation unnecessarily restricts the Board’s discretion.
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Motions to reopen removal proceedings are generally disfavored in light of the “strong public
interest in the finality of removal orders.” Trujillo Diaz v. Sessions, 880 F.3d 244, 249 (6th Cir.
2018). For the Board’s discretion—not to mention administrative finality—to mean anything, it
“must be” that the Board has wide latitude in deciding when to reopen a case. INS v. Abudu, 485
U.S. 94, 108 (1988) (quoting INS v. Wang, 450 U.S. 139, 144 n.5 (1981)). The party moving to
reopen bears a heavy burden, Harchenko v. INS, 379 F.3d 405, 410 (6th Cir. 2004), because the
public interest in bringing litigation to a prompt close is so strong. Abudu, 485 U.S. at 107. Like
petitions for rehearing and motions for new trials, motions to reopen serve an important individual
interest—giving a party a fair opportunity to develop its case. Id. But, like petitions for rehearing
and motions for new trials, such an interest can only go so far when balanced against the strong
public interest in the finality of litigation. Id.
In short, we see no strong justifications favoring an interpretation that would narrow the
Board’s flexibility to bring its actions to an end. We certainly cannot say the Board’s own
interpretation of its rule is unreasonable. Given that Nsongi Mbonga has not directed us to any
precedent in which we adopt his definition of “hearing,” he cannot show that the Board erred, let
alone that the Board exceeded the bounds of deference we afford to its interpretation of
immigration regulations.
We need not rely solely on any specific interpretation of the term “former hearing,”
however, because the Board adequately determined that all Nsongi Mbonga’s evidence either
(1) repackaged information that he had already provided during his initial proceedings or (2) would
not materially affect Nsongi Mbonga’s fear of future harm in returning to the DRC.
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B. Availability and Materiality
We review whether evidence was earlier discoverable—a factual question—for an abuse
of discretion, where we must uphold the Board’s finding if supported by substantial evidence.
Holder, 565 F.3d at 976; INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We may reverse only
if the evidence on the record compels a contrary conclusion. Gafurova, 911 F.3d at 325. We apply
a similar standard to materiality determinations: the Board only abuses its discretion when it denies
a motion to reopen where the evidence presented would likely change the outcome of the
proceedings. Akrawi v. Garland, No. 21-4071, 2023 WL 2293532, at *9 (6th Cir. Mar. 1, 2023);
see also Hernandez-Perez v. Whitaker, 911 F.3d 305, 320–21 (6th Cir. 2018).
Nsongi Mbonga provided twelve exhibits in support of his motion to reopen before the
Board. Two January 2021 exhibits—the Turner and Sweet declarations—provide expert
assessments of country conditions in the DRC in the years following the December 2018
presidential election. Nsongi Mbonga attached a 2019 U.S. State Department Human Rights
Report describing the turmoil in the DRC in the immediate aftermath of the 2018 election,
including human rights abuses by government forces in early 2019. He further provided five news
articles: a January 2020 article from The Guardian, a July 2020 article from Al Jazeera, a
November 2020 Kivu Security Organization security assessment, and two December 2020 articles
from the Council on Foreign Relations and Deutsche Welle. Each article described developments
in the DRC in the years following the election. Nsongi Mbonga attached two medical exhibits—
an undated psychiatric report and a January 2021 neurological report—describing symptoms of
PTSD that Nsongi Mbonga has suffered since departing the DRC. Notably, the neurological report
relies solely on the psychiatric report for its conclusions; the neurologist did not conduct an
independent examination of Nsongi Mbonga. Finally, Nsongi Mbonga submitted two affidavits: a
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January 2021 affidavit from former counsel explaining why hospital records were not earlier
available and a February 2021 affidavit from Nsongi Mbonga’s cousin attesting that Nsongi
Mbonga was arrested during a protest against the Congolese government.
The Board determined that five of the exhibits—the Turner and Sweet declarations, the
State Department report, and the Al Jazeera and Kivu articles—contained information about the
Congolese presidential election in 2018 and political conditions in the country over the following
two years, which was information previously discoverable and available to Nsongi Mbonga. The
Board also determined that two news reports—the Council on Foreign Relations and Deutsche
Welle articles—did contain previously unavailable information. Specifically, both articles
described how the power-sharing agreement between President Tshisekedi and former President
Kabila’s political party broke down in late 2020. See Cai Nebe & Wendy Bashi, DR Congo
Political Crisis, Deutsche Welle (Dec. 8, 2020), https://perma.cc/3UEC-EVMW; Michelle Gavin,
Power-Sharing Agreement Breaks Down in DRC, Council on Foreign Rels. (Dec. 18, 2020),
https://perma.cc/RMQ9-5YR3. The Board further determined that Nsongi Mbonga had not shown
why the medical declarations were previously unavailable—rather than alleging that new medical
information had come to light, Nsongi Mbonga claimed the immigration judge had failed to take
certain injuries into consideration. Finally, the Board found that neither of the two affidavits
Nsongi Mbonga presented included new or previously unavailable information. Nsongi Mbonga
does not challenge the denial of his motion to reopen based on the medical declarations, the former
counsel’s affidavit, or the cousin’s affidavit. As such, he has waived any argument on appeal based
on that evidence. Citizens Coal Council v. U.S. EPA, 447 F.3d 879, 905 (6th Cir. 2006) (en banc).
Nsongi Mbonga argues instead that the Turner and Sweet declarations on country
conditions are independent pieces of new evidence that support reopening his case. He argues the
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same for every news article outlined above, largely because each was published after the
immigration judge’s November 2019 decision. The Supreme Court has made clear that the Board
is well within its broad discretion to decide “that the material adduced” by the petitioner “could
have been foreseen or anticipated at the time of the earlier proceeding.” Doherty, 502 U.S. at 326.
Indeed, the Court recommends pleading as many claims as possible in the original proceeding,
even if they may be inconsistent, to ensure that the petitioner has raised all arguments that could
possibly be foreseeable at that time. See id. at 326–28. Nsongi Mbonga’s initial claims for asylum
largely distill into one argument: former President Kabila’s influence in government and security
forces—both before and after he lost the 2018 presidential election—suggests that Nsongi Mbonga
will face recrimination for his support of a former opposition political party should he return to the
DRC.
Aside from the Deutsche Welle and Council on Foreign Relations articles—which we
address below—every additional piece of evidence Nsongi Mbonga attempts to introduce
advances that central argument. For example, the State Department report describes “significant
human rights issues” following the 2018 election; the latest events cited occurred in July 2019.
Admin. R. at 99–101. The Guardian article outlines “rising tension” in early 2020 between
President Tshisekedi and politicians loyal to former President Kabila, describing how the former
president has “retained” influence in the country. Jason Burke, Militia Raids Kill Dozens as DRC
Plunges Deeper into Instability, Guardian (Jan. 31, 2020, 12:00 AM), https://perma.cc/GK5R-
ZZ8A. The Kivu article similarly depicts the dire human rights landscape in the DRC through
November 2020, describing how factions of armed forces loyal to each political party engage in
killings, abductions, and kidnappings. Pierre Boisselet, Divisions Between Tshisekedists and
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Kabilists Paralyze the State in Eastern DRC, Kivu Security Tracker (Nov. 20, 2020),
https://perma.cc/PN6Y-3LS3.
However, Nsongi Mbonga cannot overcome the high bar he must clear to show that the
information contained in these sources was unavailable during his earlier proceedings. The claim
that upon his return to the DRC he would face recrimination from President Kabila’s supporters
lies at the core of each of the above news articles he presented in his motion to reopen. That claim
was foreseeable, was raised in the initial asylum proceedings, and was considered by the
immigration judge on remand from the Board in November 2019, eleven months after the
December 2018 Congolese presidential election. Both the Board and the immigration judge—as
well as this Court—cited substantial evidence that the change in government rendered Nsongi
Mbonga’s fear of persecution unfounded. See Mbonga, 18 F.4th at 897 (collecting cases).
Importantly, none of the above sources describes any change to the status quo—merely continued
violence that has gone on since the immigration judge and Board last issued their opinions. Without
more, this evidence suggests only that general political upheaval exists in the DRC—not a ground
on which relief can be granted, Yousif v. INS, 794 F.2d 236, 242 (6th Cir. 1986), let alone one that
compels any contrary conclusion to the Board’s determination that the information was previously
available. See Gafurova, 911 F.3d at 325. The general state of affairs—that a governmental change
had occurred, that violence continued in the DRC, and that tensions remained between President
Tshisekedi and former President Kabila—was known both to the Board and the immigration judge
at nearly every stage of Nsongi Mbonga’s proceedings. The information in these sources does not
contradict that essential understanding.
Nsongi Mbonga faces a similar hurdle in his argument that the Turner and Sweet
declarations constitute newly available evidence. He claims that the declarations “specifically
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opine on the probability” that he will face future harm, “specifically address events” in late 2020
and 2021, and merit independent assessment as evidence in their own right under Federal Rule of
Evidence 702. Petitioner’s Br. 9–10. These arguments can be dispatched much as above: the two
declarations may opine on the specific probability of future harm, but that determination—which
is ultimately reserved to the immigration judge applying immigration regulations, 8 C.F.R.
§ 1208.13(b)(1)(i)—relies on information about the presidential election and its aftermath, almost
all of which was discoverable before November 2019.
The later events the declarations do cite—the Turner declaration cites a 2020 brawl in the
Congolese parliament and the Sweet declaration describes continued protests and military attacks
through the end of 2020—fall into the same general category of information that supports only the
existence of continued upheaval, see Yousif, 794 F.2d at 242, instead of a specific finding that
Nsongi Mbonga’s fear of future harm has fundamentally changed. Again, that information does
not compel any contrary conclusion to the Board’s determination. See Gafurova, 911 F.3d at 325.
The fact that a declaration or affidavit relies on existing evidence to state a “new” conclusion does
not mean it was unavailable. Rather, the conclusion should have been “foreseen or anticipated at
the time of the earlier proceeding.” Doherty, 502 U.S. at 326. Nsongi Mbonga’s reliance on Federal
Rule of Evidence 702 does not change this basic fact. When a party could have, with reasonable
due diligence, presented information—like an expert assessment of a recent presidential election
and the violence that occurred in the election’s aftermath—to an immigration judge, he has not
satisfied his burden to succeed in seeking a motion to reopen immigration proceedings. See id.;
8 C.F.R. § 1003.2(c)(1).
The remaining two news articles, according to the Board, did contain new information that
was previously unavailable either to the immigration judge in November 2019 or the Board before
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its November 2020 decision. Those articles—the Council on Foreign Relations and Deutsche
Welle pieces—discuss a breakdown in the political status quo in the DRC. Specifically, they
indicate that the power-sharing agreement between President Tshisekedi and former President
Kabila collapsed in December 2020. See, e.g., Gavin, supra. President Tshisekedi, in seeking to
challenge former President Kabila’s party’s dominance in parliament, formally ended the
agreement. Id. He ousted certain Kabila allies from the government, seeking to “reconfigure the
balance of power” in the Congolese parliament. Id.
Of course, one plausible interpretation of the evidence suggests that increased turmoil
between political parties as a result of the breakup might tend to increase violence against UDPS
members. As the Council on Foreign Relations article says, “[T]here is no guarantee that changes
in relative power at elite levels will translate to change in the direction of the country or the
conditions of its people.” Id. “No guarantee of positive change,” though, does not mean that
“change absolutely will not occur.” It suggests the opposite may be true—in other words, although
there is no guarantee of positive change, change is possible, and may even be likely. Id. So, another
equally plausible interpretation—one that DHS and the Board both adopted and that the Council
on Foreign Relations article suggests could come to pass—is that President Tshisekedi has actually
consolidated political power in the Congolese government. He may, in fact, be strengthening his
political position. Such a shift would suggest that UDPS members could receive the benefit of this
change in political circumstances, rather than the detriment. This logic underpins this Court’s
caselaw finding that claimants lack a well-founded fear of persecution by a specific government
when that government loses power or enters into a power-sharing arrangement. E.g., Mbonga,
18 F.4th at 895 (collecting cases); Mecca v. Holder, 604 F. App’x 465, 468–69 (6th Cir. 2015).
And given the deference we afford to the Board’s materiality determination, such an inference
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more than illustrates that substantial evidence supports the finding that Nsongi Mbonga no longer
has a well-founded fear of persecution. This evidence would not likely change the outcome of the
proceedings. See Akrawi, 2023 WL 2293532, at *9. Sufficient evidence supports the conclusion
that these two news articles are not material to Nsongi Mbonga’s claims so as to justify reopening
his removal proceedings.
C. Appellate Fact-Finding
Finally, Nsongi Mbonga claims that the Board impermissibly engaged in independent
factfinding, arguing that it was not permitted to “engage[] with” exhibits that Nsongi Mbonga and
the government submitted in support and opposition of the motion to reopen. See Petitioner’s Br.
14. Because the Board largely affirmed the immigration judge’s fact findings, Nsongi Mbonga’s
argument on appeal does not apply to most of the exhibits he attached to his motion. We need only
ask whether the Board impermissibly made materiality determinations for the two previously
unavailable pieces of evidence—the Council on Foreign Relations and Deutsche Welle articles.
The Board did not err. As the government acknowledges, the Board is prohibited by
regulation from engaging “in factfinding in the course of deciding cases, except that the Board
may take administrative notice of facts that are not reasonably subject to dispute.” 8 C.F.R.
§ 1003.1(d)(3)(iv)(A). However, to satisfy their burden for a motion to reopen, petitioners must
present evidence that “appears to the Board” to be “material” and that “could not have been
discovered or presented at the former hearing.” Id. § 1003.2(c)(1). In essence, Nsongi Mbonga
needed to make an initial showing that new evidence materially supported his claims for relief.
See Abudu, 485 U.S. at 106–07; Hyzoti v. Holder, 517 F. App’x 354, 357 (6th Cir. 2013); Thiam
v. Barr, 787 F. App’x 327, 329 (6th Cir. 2019); see also Moosa v. Holder, 644 F.3d 380, 385 (7th
Cir. 2011). The Board must be empowered to evaluate whether that new evidence suggests a
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material change to the merits of the applicant’s claim. In order to provide a reasoned, rational
explanation for denying a motion to reopen—required under this Court’s precedent, see Gafurova,
911 F.3d at 325—the Board must necessarily possess the power to determine whether “the new
evidence” makes any “difference to the asylum claim.” Thiam, 787 F. App’x at 329; see also
Moosa, 644 F.3d at 385 (concluding the Board must have “the option of looking at whether there
is a plausible asylum claim at all”); Le Bin Zhu v. Holder, 622 F.3d 87, 92 (1st Cir. 2010) (holding
that an applicant’s failure to establish a credible asylum claim meant the Board could reasonably
find that new evidence was immaterial). Accordingly, the Board did not abuse its discretion or act
outside its authority by finding Nsongi Mbonga’s previously unavailable evidence to be immaterial
to his claims.
IV. CONCLUSION
For the foregoing reasons, we DENY Nsongi Mbonga’s petition for review.
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