*1 Eta-Ndu; ETA-NDU; Catherine Jacob Gwladys Eta-Ndu;
Danielle Petitioners,
Eta-Ndu, Attorney GONZALES, General
Alberto America,
of the United States
Respondent.
No. 03-2287. Appeals, Court of
United States
Eighth Circuit. 18, 2004. Oct.
Submitted: 23, 2005. June
Decided: *3 MсDavitt, he, father, argued, Minne- Etu-Ndu J. Patrick claims and his (John Troyer, uncle were members of the Socialist Dem- apolis, Minnesota Minne- (“SDF”), brief), opposition party ocratic Front Minnesota, appel- on the for apolis, ruling party, Peoples’ the Cameroon lant. Democratic Movement. Eta-Ndu asserts Hunolt, argued, Washington, A. James family group” that his ais “social within D.C., appellee. laws, meaning and he has a “political opinion” imputed family as- COLLOTON, LAY, and Before Thus, argues politi- sociations. he his own BENTON, Judges. Circuit opinion cal in a membership particular BENTON, (an Judge. *4 Circuit group SDF-supportive family) social subjected him past persecution, Eta-Ndu, Jacob Catherine Eta-Ndu and him target persecution. makes a for future of their two children1 —Cameroon na- At deportation hearing, the first formal challenge a final order of the Board tives— (“BIA”) Eta-Ndu testified that between 1990 and Appeals Immigration affirming Cameroon, living while in partici- he departure by order issued the immigra- pated mobilizing in people grass- and other proper tion court. Jurisdiction is under 8 time, During roots work for thе SDF. 1105a(a) (1994), § pro- U.S.C. because the subjected his home midnight 1, 1997, ceedings commenced before April by alleg- searches Cameroon with the BIA decision issued after October authorities — edly looking for SDF he documents—and 1996. See Pub.L. No. 104-208, was detained for over ques- three hours of 30, 1996), (Sept. Stat. 3009 repealing 8 tioning, being after shoved to ground (1994). § 1105a U.S.C. The is af- and kicked Cameroon officials. firmed. that, Eta-Ndu also testified in I. Facts uncle was murdered because of his SDF affiliation; shortly after the murder his Jacob Eta-Ndu entered the United threats; father received death his father’s with a non-immigrant States student visa down; mysteriously and, business burned 8, 1991, September on to attend the Uni- ultimately, his father and two brothers fled versity of Minnesota. His wife Catherine Nigeria. and children followed on a derivative visa. 1, 1995, August
On
deportation proceed-
Catherine Eta-Ndu testified that
ings commenced with an Order to Show government ended her husband’s student-
The
alleged
Cause.
Order
Jacob Eta-Ndu
salary,
explanation,
without
and refused to
non-immigrant
violated his
status
fail-
it,
request.
reinstate
after her
She sus-
ing
University
to attend the
Septem-
after
pectеd it was due to her husband’s SDF
1994, making
ber
family deportable.
affiliation. She admitted that her mother
The Eta-Ndus
allega-
admitted the factual
father,
siblings
and a
number
—(cid:127)
tions, including deportability, but renewed
although
directly
in any politi-
involved
previous application
asylum
for
or with-
cal matters —live
peaceably
Cameroon.
holding
deportation.2
Both Jacob and Catherine also testified to
1. The Eta-Ndus also have two other children
request
beneficiaries of his
for
who were born in the United States.
withholding
deportation.
See 8 U.S.C.
1158(c) (1994).
Eta-Ndu,
§
pri-
Jacob
as the
wife, Catherine,
mary applicant
asylum,
2. Jacob Eta-Ndu's
and their
is hereinafter re-
two Cameroon-born children are derivative
ferred to as "Eta-Ndu.”
allegations;
police report
porting his
renewing
pass-
their
having no trouble
murder; and a letter
about his uncle’s
ports.
police
local
officer who
from the
Cameroon
expert
on
Henry Krieger,
Dr. Milton
to Eta Ndu.
report
sent the
at the first
also testified
politics,
reconvened,
hearing
He described
over two
hearing.
When
deportation
opposition
lаter,
most effective
the IJ admitted the letters
as the
months
SDF
Cameroon,
shootings,
and noted
report
into evidence. The
group
police
by the
arrests,
adverse action
living
Nigeria
and other
from the father
letter
Ac-
members.
against
suspicion,
SDF
it was
government
first
raised
because
are
Krieger, SDF activists
cording
City,
to Dr.
New York
New York.
mailed from
county, and a
throughout
known
that the letters from
well
The IJ also noticed
ex-
activist “would be
plain paper,
murder of a known
with-
typed
the SDF were
independent
thing that the
actly the sort of
letters con-
out official letterhead —unlike
reporting
in particular
Herald
press,
firming
membership
for this IJ
”
....
up
pick
Manfe would
that the
other cases. The IJ further noted
explained that the SDF
typed
further
on the
apparently
SDF letters were
party
recognized,
established
from the same
typewriter,
same
mailed
*5
(Yaounde)
membership rec-
“fairly
day.
substantial”
with
on the same
IJ
place
ords,
verify mem-
analysis
would be able to
requested
which
forensic
of the SDF
Eta-Ndu,
father, and uncle.
letters,
his
bership
they
of
concluded
came from
which
however,
note,
membership may
typewriter.
He did
the same
areas,
remote
available from some
not be
explanations.
Eta-Ndu offered several
Eta-
speak
not
for Mr.
although he could
letter,
to his father’s
he testified that
As
base, Mamfe.
Ndu’s home
in
person Nigeria
his father found a
who
par-
is a
Dr.
noted that Mamfe
traveling to the United States to mail
SDF, al-
area for the
ticularly dangerous
letter,
Nige-
in
because mail is so slow
card-car-
that a mere
though he admitted
a letter from his
ria. Eta-Ndu submitted
safe
rying
probably
member is
SDF
confirming this fact. As to the SDF
father
today. He further testified
letters,
Cameroon
no
testified he had
knowledge, the
personal
no
while he has
pre-
the letters were
knowledge of how
in an area where
uncle’s death occurred
did submit a letter
pared. Eta-Ndu
light
infrequently come
episodes
such
explaining that he had no
Christopher,
Dr.
affiliation.
likely be due to SDF
and could
office, requir-
in his
typewriter
access to a
typed by
be
the secre-
ing that all letters
testimony, the immi-
At the close of the
in Ba-
provincial office
tary at the SDF’s
(“IJ”) requested confirma-
gration judge
Christopher speculated
Dr.
menda.
Eta-Ndu’s SDF-
from the SDF of
tion
from Professor Mbu-
the second letter
activities,
un-
of the
documentation
related
place
to the same
Agbor was sent
death,
burning of his father’s
and the
cle’s
access to
likely
he also
lacked
typing, since
Eta-Ndu submit-
response,
business.
explained
Finally, Etu-Ndu
typewriter.
IJ,
alleg-
typed,
both
ted two letters to
likely due
postmarks
same
were
that the
letter from
edly from
officials—one
residents
Bamenda
to the fact that
Mamfe,
Tonyi Mbu-Agbor, of
Professor
close to an inter-
often mail letters
Mamfe
7, 1998; and a second letter
March
dated
Yaounde,
airport,
like
because
Bambili,
national
Christopher, of
dat-
from Dr. Ndi
Dr.
in their hometowns.
mail is also slow
also submit-
March
1998. Eta-Ndu
ed
affidavit, stated he had
brothers,
Krieger,
in an
father,
ted letters from
mail service and
(also
haphazard
sup- heard about
magistrate)
cousin
a Cameroon
Cameroon,
branches,
postmarking
types
correspon-
inaccurate
but
both
experience
dence,
had “no
to confirm
personal
and returns the
documents
this.”
a signature.
branches for
The BIA also declined to review additional
Agency
II.
Decisions
evidence submitted
Eta-Ndu after the
evidence,
Reviewing the
the IJ conclud-
IJ’s decision.
present
not
ed that Eta-Ndu did
sufficient
Asylum
Withholding
Depor-
III.
of
proof
past persecution.
of
As for future
tation
persecution,
implausible
the IJ found
Eta-
Eta-Ndu contends that
the BIA
explanations
Ndu’s
about the SDF letters.
erred
of
in affirming
as matter
law
expressed
The IJ also
concerns with the
IJ’s decision that Eta-Ndu failed to estab
murder, in light
evidence of the uncle’s
lish a “well-founded fear
persecution”
testimony
Krieger’s
that it would be
account of his
opinion or social
“exactly”
thing
independent
the sort of
group membership.
BIA
press
pick up. Although
would
the IJ did
“Because the
es
specific
credibility
sentially adopted
opinion
make
adverse
the IJ’s
while
finding, he
credibility
adding
found Eta-Ndu’s
reasoning,
some
its own
we re
“seriously
shaken”
concluded that be- view both
Krasnopivtsev
decisions.”
present objective,
(8th
cause Etu-Ndu did not
Ashcroft,
Cir.2004),
382 F.3d
corroborating evidence he failed his bur-
INS,
citing
Siong v.
376 F.3d
proof.
den of
(9th Cir.2004);
INS,
Chand v.
(9th
1066, 1072
Cir.2000).
n. 7
appeal,
On
affirmed the IJ’s
’
ruling that Eta-Ndu’s
experiences
Both the IJ and the BIA denied
do not
past
rise to a level of
asylum and withholding
deportation,
*6
persecution. The BIA then affirmed the
finding Eta-Ndu did not meet his burden
persecution,
to future
focusing
IJ as
on the
of proof. This denial
upheld
must be
if
disputed
two
letters:
“supported
reasonable, substantial,
by
analysis
The forensic
reveals that
two probative evidence on the record consid
typed
letters were
typewrit-
the same
Elias-Zacarias,
ered
aas whole.”
v.
INS
er, although allegedly
sent
two differ-
478, 481,
812,
502 U.S.
112 S.Ct.
117
ent
branches
the SDF located in dif-
(1992),
L.Ed.2d 38
quoting 8 U.S.C.
provinces
ferent
of Cameroon.
[Eta-
1105a(a)(4) (1994).
§
standard is a
“[This]
submitted a letter
Ndu]
from the author
one, requiring
reviewing
deferential
a
stating
of one of the letters
that his
court
uphold
a denial of
unless
office
typing
sends letters to a
school to
an alien demonstrates ‘that the evidence
typed.
be
The Immigration Judge
presented
he
compelling
was so
that no
found that
explanation
was uncon-
fact
reasonable
finder could fail to find the
vincing.
persuaded
We are not
that the
”
requisite
persecution.’
fear of
Nyama v.
Immigration Judge’s 'conclusion
un-
is
(8th
Ashcroft,
812,
Cir.2004),
357 F.3d
816
reasonable.
supply
did not
[Eta-Ndu]
Elias-Zacarias,
quoting
502
U.S.
483-
statement from the author of the other
84,
983
Cir.1993).
(8th
objective
requires
element
Cir.
The
F.3d
803
Ashcroft, 367
v.
direct,
“credible,
specific
evidence that
INS,
2004),
F.3d
citing Feleke
118
person
applicant’s posi-
a reasonable
Cir.1997).
(8th
this court
may
Nor
598
if
persecution
tion would
returned
fear
find to be
even a decision
we
“reverse
country
origin.”
Id.
[his]
Rather,
affirm
we must
erroneous.
clearly
unless, after
factual decisions
the BIA’s
persecution
asserts
Eta-Ndu
claims
whole, we
membership
particular
the record as a
in a
upon
reviewed
based
having
family.
group,
not be
social
the Eta-Ndu
This
possible
that it would
determine
prac
requires
showing
“pattern
the BIA’s
adopt
fact-finder to
a reasonable
against
family on
persecution
tice” of
Ashcroft, 361 F.3d
Eusebio v.
position.”
group status. See 8
account of their social
(8th Cir.2004),
Menen
citing
1091
208.13(b)(2)(iii) (2004);
§
Makon
C.F.R.
915, 918—
Ashcroft, 360
dez-Donis v.
F.3d
(8th
INS,
1383
Cir.
nen v.
F.3d
omitted).
Cir.2004) (citation
(8th
See
1995)
practice
(defining
pattern
(3rd
228, 249
Ashcroft, 353 F.3d
Dia v.
or
requiring “organized
as
discrimination
Cir.2003) (en banc) (“If
fact
a reasonable
systematic
pervasive persecution”).
or
finding on
particular
make a
finder could
assuming
allegations
that Eta-Ndu’s
Even
record,
finding
administrative
then
true,
uncle and father were
regarding his
evidence.
by substantial
supported
is
they
per
were
the evidence demonstrates
fact finder
Conversely, if no reasonable
beliefs,
secuted due to their
finding on the administra
could make that
family.
membership
their
record,
finding
supported
is not
tive
INS,
(8th
975, 983
Nyonzele v.
See
evidence.”).
substantial
Cir.1996). Thus,
Eta-
the issue is whether
may, in his
Attorney General
fear of
Ndu has a well-founded
discretion,
“refugee.”
to a
grant asylum
political beliefs.
upon
based
his own
1158(b)(1).
“any
refugee
§
A
U.S.C.
A. Past Persecution
any country of such
who is outside
person
...
unable or
nationality
who is
person’s
presumption
is a rebuttable
There
applicant
persecu
persecution,
... because of
of future
once
unwilling to return
8 C.F.R.
past persecution. See
proves
fear of persecution
tion
a well-founded
or
208.13(b)(1) (2004);
Ashcroft,
§
Tawm v.
race,
nationality,
*7
religion,
of
account
(8th Cir.2004),
740,
citing
363 F.3d
743
group,
in a
or
membership
particular social
Eusebio,
Although
F.3d at 1090.
Eta
361
8
U.S.C.
opinion.”
by
attack
Ndu testified to an
1101(a)(42)(A).
“Persecution involves
§
officials,
nearly
for
three
detention
and
account
life or freedom on
one’s
threat
hours,
“perse
past
not constitute
this does
grounds.”
protected
five
[these]
of one
Tawm, 363
cution” as a
of law. See
matter
(8th
INS,
491, 497
v.
291 F.3d
Fisher
(“Brief
of detention do
periods
at 743
F.3d
1101(a)(42)(A).
Cir.2002),
§
citing 8 U.S.C.
necessarily
persecution.”).
constitute
not
fear
To
a well-founded
establish
asylum despite evi
court has denied
This
applicant
demon
persecution,
must
See
more serious abuse.
dence of even
subjectively genuine
the fear is both
strate
(brief
Id.,
Eusebio,
F.3d at 1091
citing
361
v.
objectively reasonable.
and
Shoaira
ral
beating during political
and
detention
Cir.2004).
(8th
837,
Ashcroft,
F.3d
844
377
of home insufficient
and
lies
destruction
subjective
may
proven
be
element
v. Ash
and Dandan
prove persecution),
Cir.2003)
(7th
genu
testimony
applicant
567,
that the
573-74
croft,
credible
339 F.3d
Id., citing
(one-time,
imprisonment insuffi
three-day
Gha
inely
persecution.
fears
(8th
INS,
persecution).
prove
1390
cient to
7 F.3d
semimehr
(1)
failed to:
rule
on the
explicitly
IJ]
B. Future Persecution
credibility
applicant’s] testimony;
of [the
above,
applicant
As set forth
(2)
why it
...
explain
was reasonable
per
fear of
must establish well-founded
(3)
corroboration;
expect additional
or
“credible, direct,
specific
secution with
sufficiency
applicant’s]
assess the
of [the
Shoaira,
ther, although Eta-Ndu testified to his explicitly The IJ did not find the testi burning uncle’s murder and the of his fa mony of Eta-Ndu not credible. This court business, ther’s he admitted he did not require an explicit ruling does on cred responsible know who was for either inci ibility can expect before the IJ additional dent. El-Sheikh, corroboration. See 388 F.3d at However, must, evidence, case, Analyzing the the IJ 647. the IJ in such a divided allegations catego- why into three it explain expect Eta-Ndu’s is reasonable to addi 1) 2) SDF, membership in the ries: active tional corroboration. Id. significant
his role as a local father’s SDF 3)
leader,
politically-motivated
required
uncle. The
murder
IJ
case,
fully explained
this
the IJ
“objective
corroborating
evidence
these why it was
expect
reasonable to
additional
key
three
factors in the case.”
corroboration of Eta-Ndu’s central claims.
El-Sheikh,
See
the absence evidence and tо verification.”).3 if cannot be sustained “the BIA the [or 1990s, Krieger provide 3. did not corroboration conditions in Cameroon in the specific of Eta-Ndu's claims. While Dr. obtaining he stated that after information and general testified the cultural and father, his broth- persecution: letters from 3. ers, cousin/magistrate supporting and Eta-Ndu’s assessed The IJ then police report about his allegations; un- attempted corrobora of his explanations murder; from the and a letter local cle’s activities. See El- alleged of tion officer who sent the re- police Sheikh, submit at 647. Eta-Ndu 388 F.3d letter port to Eta-Ndu. The officer’s ref- his SDF to corroborate two letters ted fleeing Nige- erenced Eta-Ndu’s father However, reasonably the IJ participation. “dirty murder due to ria and his uncle’s authenticity. Both letters their doubted acknowledged, politics.” The officer how- expected “official” letterhead lacked the ever, personally like that his assistance was party established organized, from an forensic- importantly, magistrate. the More solicited Eta-Ndu’s the SDF. cousin/ let confirmed that the analyst essentially documents evidence consisted Because this machine, the same typed on friends, ters were family from and close of letters from been sent having allegedly despite lacking “objec- the evidence found officials, with offices located separate two Therefore, only “objective” ev- tivity.” the apart. 40 miles the IJ were the two idence before letters. that ex- determined Eta-Ndu’s The IJ BIA Eta- explained and that The IJ ba- “any sort of credible lacked planations for the sus- implausible explanations Ndu’s author Although explained one sis.” coupled a lack of “ob- picious letters with typing his letters to central he sent jective” undermined Eta- corroboration school, a letter Eta-Ndu failed to obtain at Nyonzele, case. 83 F.3d Ndu’s See author, typing or from the second specifically not find Although IJ did school, also the BIA noted. Eta-Ndu as credible, not the IJ determined the school explain practice failed lacked provided that the documents credi- to the re- the documents back returning gave “specific, BIA bility. The IJ and the signature. branches for author’s mote accepting Eta- cogent for not reasons” require another step additional would This finding the docu- explanations Ndu’s and to and from of the letters hand-carrying Perinpanathan, ments not credible. Cameroon, with regions of two remote Because this court must F.3d at 597. post- arrival back to the same coincidental credibility immigration judge’s “give the day. postmark on the same al office ” weight,’ this determination finding ‘much cor- that without further The IJ concluded Hajiani- quoting upheld. is Id. SDF, the IJ could from the roboration (8th INS, 26 F.3d Niroumand questionable circumstances overlook Cir.1994). upon Based unbelievable originated. which the two letters under justifications, attempted documents Diallo, (noting at 289-90 See BIA found Eta-Ndu failed and the IJ may meet their burden “petitioners proof. to meet his burden and suffi- by offering a believable proof why as to such corrobo- explanation cient correctly The IJ addressed (em- presented”) was not rating evidence explanations, Eta-Ndu’s corroboration added). phasis his burden of failed to meet concluding he record, upon the denial proof. Based letters, Eta-Ndu addition to the SDF supported asylum to the Eta-Ndus sup- corroborating evidence presented substantial, “reasonable, probative evi- family’s involvement and his port of SDF *9 uncle, knowledge” of of the activities had “no learning acts of of details about father, Cameroon, “able to and was not during Eta-Ndu’s time members SDF cousin/magistrate. Eta-Ndu's death Eta-Ndu’s reach” aware” of the of he “not 986 Menendez-Donis, Doherty, 360 F.3d at abuse of discretion. See INS v.
dence.” 314, 323-24, 719, 112 This court does not find the evi- 502 U.S. S.Ct. 116 917-18. (1992); that no compelling Ashcroft, dence so reasonable L.Ed.2d 823 Patel v. 375 (8th 693, Cir.2004), as the BIA and IJ F.3d 695 n. 2 citing factfinder could find Elias-Zacarias, Ramirez-Alejandre Ashcroft, 502 at 483- v. 319 F.3d did. See U.S. (9th Cir.2003) (“Under 365, 84, proce 382 BIA 112 812. S.Ct. dure, a motion to remand must meet all Withholding Deportation C. requirements reopen of motion to same.”). and the two are treated the This
Eta-Ndu also seeks withhold
court affirms the BIA’s denial of a motion
proof
The standard of
ing
deportation.
reopen
to
“if the movants have failed to
withholding
deportation
for
is more
prima
establish a
fаcie case for the sub
stringent
asylum. Krasnopivtsev,
than
they
if
840,
stantive relief
seek or
the movants
citing
382
at
8
F.3d
U.S.C.
1231(b)(3).
have failed to introduce material evidence
§
“The alien must show a ‘clear
previously
that was
unavailable.” Strato
probability’
perse
that he or she will face
(8th
651,
Ashcroft,
v.
388 F.3d
Cir.
country
cution
to which he or she
2004),
Abudu,
citing
94,
INS v.
485 U.S.
Id.,
Hasalla,
will
deported.”
quoting
be
104-05,
904,
108 S.Ct.
withholding deportation. See id. tion present because he did not “new evi adequately dence.” Eta-Ndu failed to Due IV. Process explain why proffered evidence was Eta-Ndu claims that the BIA hearing “unavailable the time of the process rights by violated his due not re before IJ.” See 8 C.F.R. opening remanding his case for new 1003.2(c)(1). § why He did not show asylum applicant evidence.4 For an “to such evidence was unavailable either in prevail process challenge, on a due [he] 1998 or before the close of evidence on Shoaira, prejudice.” must show 377 F.3d November 2000. Prejudice at 843. is found “where dеfects gave two explanations for fail- deportation proceedings ‘may in the well ing present First, the evidence earlier. deportation have resulted that would he “believed” the record was closed on ” not otherwise have occurred.’ United October 1998—the deadline for docu- Torres-Sanchez, States 68 F.3d confirming ments activity and the (8th Cir.1995) (citation omitted). There Nearly years uncle’s murder. passed two fore, this court first ascertains whether between the time Eta-Ndu “believed” occurred, “defect” and then determines record was deportation closed and the final applicant whether the adequately proves time, hearing. During this he made no “prejudice.” attempt evidence, to submit further or re- quest The BIA’s denial of a motion a reopening of the record. At the reopen and remand hearing, final reviewed Eta-Ndu’s counsel—after alleged Eta-Ndu also claims that the IJ due process violated the IJ's due violation because process by prematurely closing the record on jurisdiction this court lacks to hear claims not 5, 1998, by failing adequately October raised before the BIA in the first instance. specify type of corroborative evidence he Ashcroft, See Gebremaria v. required. argu- Eta-Ndu failed to make this (8th Cir.2004). n. 4 ment to the BIA. This court will not address
987 critical disregards “to be because it and uncon- the record was said that objection.” “no expert testimony proving that he had troverted closed”—stated possibility per- a serious Eta-Ndu faces explained Alternatively, Eta-Ndu majority secution Cameroon. The also on the decision the IJ issued only after governing contradicts the record and mis- 7, 2000, he know that the IJ did November applies applicable legal by standard af- on “official” documentation required SDF firming the IJ’s decision on the basis of Eta-Ndu, however, misinter- letterhead. speculation, not substantial evidence. The IJ noted the the Id’s decision. prets documents, nature of the suspicious overall I. The “Substantial Evidence” Stan- just their credibility, not tainted his
which
dard of Review
The IJ ade-
appear
to
“official.”
failure
that he was to
notified Eta-Ndu
quately
asylum
ap-
When the BIA denies
to an
from the SDF
“documentation
produce
1105a(a)(4)
§
plicant under 8 U.S.C.
activities.”
confirming [his]
(1994), this court reviews the BIA’s deci-
explain
to
given
was even
time
under the “substantial evidence”
sion
test.
letters,
to
yet failed
submit
suspicious
v.
Lopez-Zeron
Dep’t
See
United States
of his
documentation
objective, reliable
(8th
Justice,
Cir.1993);
8 F.3d
membership.
States,
Behzadpour v.
United
proves the evidence
explanation
Neither
(8th Cir.1991).
Although this
prior
to Eta-Ndu
“unavailable”
straightforward,
of review
standard
seems
hearings,
or the November 2000
April 1998
actually encompasses
it
two tests.
explanations prove prejudice
nor do the
asy
We will
the BIA’s denial of
affirm
adequate
an
di-
given
He was
Eta-Ndu.
“supported
lum if the BIA’s decision was
present any
and sufficient time to
rective
reasonable,
probative
substantial and
He made no
objective, reliable evidence.
the record considered as a
evidence on
of the record at the
objection
closing
Elias-Zacarias,
502 U.S.
whole.” INS
BIA
Accordingly, the
did
hearing.
final
478, 481,
tion” on
objective compo
subjective and
that he or
having
applicant
prove
a
does not have to
(1)
subjective fear of
a
nent:
persecution,
of
probability
she faces
”
(2)
per
of
possibility
a “reasonable
proposed
the
which is what
Government’s
Cardoza-Fonseca,
INS v.
secution. See
(i.e.,
effectively re-
requires
it
standard
421, 440,
94
107 S.Ct.
480 U.S.
the
quires
panel
the
to be certain
(1987)
added); see
(emphasis
L.Ed.2d 434
applicant
persecuted).
will be
Probabili-
Elias-Zacarias,
112
502 U.S.
also
to the likelihood that an event
ties relate
ap
with
(citing
Cardoza-Fonseca
S.Ct.
occur,
asylum
the fact that an
will
but
II. Future [is] Persecution hold the *12 there, regime’s authority to hold the line justified in BIA were not The IJ and against any region defections from the perse Eta-Ndu’s fear of future rejecting opposition. into the in because a reasonable cution Now, I very a think there is looking striking at the record as whole testi- factfinder requisite mony have to conclude that the in ... “would Eta-Ndu’s affidavit ... persecution existed.” Elias-Zaca fear of happened [which] recounts what to the rias, 481, 112 S.Ct. 812. Con U.S. family in early ... when assertions, majority’s trary to the it had been known for a while that the give “specific, cogent the BIA did not and family family .... was SDF [T]here rejecting explana Eta-Ndu’s reasons” for sequence early in [a] 1990 when the Majority opinion at 985-86. The IJ tions. representative local ... regime testimony that Eta-Ndu’s and found basically and this is sеcurity the internal credible, they rejected yet his Cameroon, ministry began in to visit the solely speculation about claim based family to warn him father and [sic] “counterfeit” documents. two so-called family other that family’s members clearly sup that The record shows opposition was going not unnoticed. afflicting the two posed inconsistencies ... This culminates March of 1994 and reason subsequently documents were shooting with the of ... Eta- death Mr. ably explained by Eta-Ndu. Unfortunate subsequent flight Ndu’s uncle and the acknowl ly, explanations these were never the father and two other brothers Thus, asylum was not edged. denial of Nigeria. “reasonable, and supported by substantial Now, this is the kind of local intimi- on the record consid probative evidence” repression dation and direct that I think Id. ered as a whole. speaks dangers to the that rank and file ... opposition SDF have these little Testimony Expert A. country episodes light back that come to Expert Krieger witness Dr. Milton de- really but do infrequently, represent highly testimony that not probative livered to the rank happened what and file hаs only provided objective corroboration for .... I Cameroonians think that’s a persecution, Eta-Ndu’s fear of future but very very striking run of events lead- —a provided objective corroboration of also body ing to the death of the uncle whose confirming letters Eta-Ndu’s the two SDF personal possessions was found with IJ, BIA, membership. SDF everything party else intact but docu- majority all failed to come to terms And I mentation removed.... believe testimony. Krieger’s poignant with Dr. very strong very strong a [is] —a instance, contrary majority’s For person indicator of what this and his record, majori- supra of the flawed review family they return to face should Krieger n. Dr. did ty opinion at 984-85 Cameroon. testify to the direct risk of added). (emphasis A.R. at 212-14 faced Eta-Ndu. He stated: Later, Krieger quan- the IJ asked Dr. striking of the most features [O]ne that Eta-Ndu would tify the likelihood be. testimony Mr. Eta-Ndu’s his wife’s if subject deported to arrest or torture happened here in his home vil is what Cameroon, though even Eta-Ndu did lage particu of Manfe in 1994. This is a perse- a likelihood of need to demonstrate larly dangerous opposition arеa for the responded: ... cution under the law. political leader[’s] because the local the acts of nothing done to constrain fairly high profile. a has ... he Well having gone Appli- abroad [to for officials. The known these local CPDM He’s school], from his he’s known the U.S. continues to be a cant in this case Manfe, work[er] family boss, as SDF target Ayuk- of his former Mr. there is substantial I believe Takem, “po- Applicant’s previous for the home would be high going risk affronts”-i.e., having the “audaci- litical challenge to liveli- really really— .... A ty” organizer as an to serve *13 un- safety- his Given hood and his legalizing law on the the SDF books a that there is I think cle’s fate democracy, de- does not institutionalize very— that —that he very risk substantial politics, or eliminate Mr. personalize directly. very persecuted It’s would be Ayuk-Takem’s ability good to make on this, arbitrary govern- an sáy it’s hard to his threats. the risk would quantifying in ment and (located in Peti- Krieger Affidavit of Dr. I would want to— more than be—that’s (underline in the Appendix tioners’ at 307 high high—very But it’s to do. — added)); A.R. at original; emphasis other high this man is known well risk that testimony (Krieger’s regarding 246-47 of interest to thе authorities enough and (statement same); endanger A.R. him see also at 487-88 way in as and such family [ Krieger’s he and his affidavit into accepting should court Jreturn. evidence). added). (emphasis at A.R. 219-20 probably it is Krieger Dr. added that Krieg- asked Dr. When the Government card-carrying SDF mem- safe to be a mere er whether he attributed the death of Eta- activist) (not today. in ber anyone particular, in Ndu’s uncle to However, that “since Mr. Eta- he testified following exchange occurred: I’m country Ndu has been out of my I think tenure on the [Answer:] his case.” A.R. at 229. sure it’s so true [in] ground of Cameroon and sources Krieger explained: rely my information I on for book and hearing April on the most recent [A]t writings other that I’ve done make it to question about the Court raised unmistakably that it my mind clear danger Applicant and whether the in the division officer Manfe division of passed since the SDF is family has province authority whose and southwest However, party. legal political now a supervise would be to responsibility [it] in large of the SDF is legalization particular .... politics [the] It would be change, made in re- part a cosmetic responsibility of the division officer in sponse to concerns Cameroon’s keep political opposi- Manfe to track of reality ... opinion. world the CPDM locally govern- tion and to execute the ruling party] power still abuses its [the in ment’s will these cases.... upper hand and to minimize keep I by the SDF. As testi- posed the threat [Question by So it’s basi- Government]: case, during hearing fied the first this cally just your you that opinion own who (threats, imprison- power the abuses of may think have killed him? intimidation, torture, ment, illegal I’m almost certain. I think [Answer:] detention) out are initiated carried I am I’m certain that well informed as level, beyond virtually all at the local him, whoever killed direction of officials anxious to scrutiny, by CPDM behind the act. the division officer was curry favor retain their fiefdoms and [Question:] Okay. you But don’t know organiza- among higher up those sure, you? that for do legalization tion. The of the SDF has No, entity thing stockpiles copies not the first whatsoever old but it’s [Answer:] gets periodical. to a court Cameroon. this obscure It remains baf- fling why expected to me added). 224 (emphasis A.R. at suр- to obtain such source. No evidence Contrary to made the IJ’s statements ported expectation the IJ’s unreasonable of the opinions reports majority’s that Eta-Ndu had a means to obtain a ... expected [to] “would be uncle’s death credibility decade-old article. The of Eta- press,” in the local see Oral reported be Ndu’s case should not have been doubted 26, majority at opinion Decision basis. about Krieger specifically testified murder, explain- nature of the uncle’s Contrary to statements made in the IJ’s country representative it was of “back ing majority’s opinions Krieger that Dr. light infrequently episodes that come to told them confirmation SDF member- ” identify could .... A.R. at available, Dr. ship “easily” should be *14 called The Her- only single newspaper, Krieger actually although testified that the ald, likely report the death of a that would generally kept good records at the SDF murder, but he politically motivated stated level, precinct par- evidence Eta-Ndu’s only publish such that The Herald would membership might ticular be available: if it involved а known activist information might It which were depend pre- on the ... public.” if “that information is In cinct and which town. Bamenda 242; at majority opinion, supra, at A.R. cf. I activity which is the heartland of SDF the (suggesting Krieger Dr. testified if think that information is—is there and reported uncle’s death would have been provide wish to it could do so. Krieger Dr. press, which is not what speak I couldn't for Manfe which I said). established actually No evidence presume might be Mr. Eta-Ndu’s widely was re- whether Eta-Ndu’s uncle part not be of a home base. This would by as an activist the Cameroonian garded .... public record public that was infor- public, or his death added); (emphasis A.R. at 225 Oral cf that Krieger mation. also testified 27; majority opinion, supra, Decision at cf press subject repression is sometimes (once again mischaracterizing at political opponents both regarding news by attributing Krieger to Dr. the record post-publication. A.R. at 247. pre- and See Eta-Ndu “would be the statement that Manfe, region He noted that which verify membership” in the SDF or able to remote,” murdered, “quite the uncle verification.). “easily” obtain Therе could 243, making reporting A.R. at from that testimony establishing in this case was no difficult. area even more activist, Eta-Ndu, grassroots that local Although may request an IJ corrobora- “easily” verification docu- could obtain they ‘easily “if avail- tive materials are ments from the SDF. able,”’ from overseas “is documentation sum, expert testimony Krieger’s Dr. easily Kaur v. almost never available.” Eta-Ndu hails from a established that (9th Cir.2004) Ashcroft, 379 F.3d region for SDF “particularly dangerous” (citation omitted). if a 1994 Herald Even members; that the uncle’s opposition documenting the uncle’s death did article certainly orchestrated death was almost exist, Eta-Ndu testified that he could not existing government; that the uncle’s paper in the United States. obtain of what “very strong indicator death was A.R. at 378. No one testified that See they family and his face should libraries, li- [Eta-Ndu] United States Cameroonian Cameroon”; country that back braries, any or return to government, the Cameroon whatsoever to rebut such as duced no evidence persecution, episodes political infre- murder, light “come to presented by Eta- overwhelming proof the uncle’s that The Herald the fact quently” despite summarily Eta- The BIA dismissed Ndu. events; that there is publishes such relying only speculation proof Ndu’s Eta-Ndu is well- “very high risk” concerning corroborating evi- due to his inter- government known majority commits the same dence. The family’s political ac- schooling, his national error. activism; tivism, political and his own target is still Corroborating Evi- B. Additional of Eta-Ndu’s former boss because his dence beliefs; that Eta-Ndu faces a that he would be risk “very substantial The Letters Two Dr. also directly.” persecuted SDF Officials difficulty ob- might that one have testified establishing key pieces of evidence mem- taining evidence of Eta-Ndu’s SDF political affiliation with the Eta-Ndu’s “home bership from Manfe —Eta-Ndu’s typed the two letters from SDF SDF were very area. it was a remote base”—because officials, Dr. Professor Christopher and this, majority insists In the face of all Mbu-Agbor. Christopher’s follow-up Eta-Ndu’s not corroborate Krieger did why initial letter majority opinion, supra, explained letter claims. See conclu- n. This is an irrational *15 984-85 3. or other official mark- lacked letterhead sion. ings: Krieger’s of Dr. testimo- The substance by secretary a at [My] typed letter was ny expertise and his was was uncontested provincial the Bamenda SDF Office. testimony unchallenged. His indi- likewise Bambui, in typewriter do not have a We cated that Eta-Ndu faced reasonable any building neither do we have indeed, it possibility persecution; of future party serves as an Office. hold We very faced a actually showed that Eta-Ndu in of members meeting the homes [sic ] being singled out for high likelihood of enough space to accommodate who have on account of his be- persecution in rotate all the members. Members deported he be to Cameroon. liefs should party the role of hosts for meet- playing Any listening factfinder to reasonable ings. have to con- Krieger’s testimony Dr. would correspondence .... Our local is done requisite fear of clude the by generally written hand memos. We testimony clearly in existed this case. His have official mail destined for other re- direct, credible, qualifies specific as gions typed Typing Schools Bamen- persecu- evidence of a reasonable fear of or in our Provincial comparison, pro- tion. da Town Office.... Government follow-up way disprove Christopher's explanation Incidentally, Christopher's let- Dr. areas lacked letter- that SDF officials head, rural directly Cameroon to Eta- ter was sent from offices, unsurprisingly, typewriters. Minneapolis, see A.R. at Ndu’s counsel in gratuitous unsupported This statement preempt suspicions. in order to IJ's did indicate whether the IJ’s evidence and point, At one the IJ stated had seen SDF he asylum applicants from other cases involved bearing asy- letters letterhead in other official regions any equally remote of Cameroon. At 27; lum cases. See Oral Decision at see also rate, overwhelmingly evidence the record statement, majority opinion, supra, (apparently at 981 highly such a and it is contradicts finding worthy give weight to be inappropriate IJ's statement to such state- significance). any This remark does not in ments. I expected days You that write the affi- will hold mail for several also and will postmark [T]here davit in an SDF letterhead.... all mail in a batch on day beyond are no SDF letterheads the level office, it post regardless leaves the of a Division. Letterheads and official day what it was received .... at stamps party are available head (located Affidavit of Dr. Krieger in Peti- quaters and Provincial office. As [sic ] 307) tioners’ Appendix (emphasis add- fact, matter of some Divisions do not ed). remote, rural, Given the impov- party operat- have letterheads. The is up-country Cameroon, erished nature of it budget.... ing shoestring makes sense that two letters from two
A.R. at 516. This is more than sufficient SDF officials located in regions remote explanation why as to the SDF letters hand-written, would be carried to markings lacked “official” this case. typed at the same central office on the explanation There was also a sound as to typewriter, same and then held in batches why appeared the two SDF letters to be major at the same post office to post- be place, despite mailed from the same day. marked on the same geographiс distance between the authors. majority explanation found this un- testimony explained Prior it satisfactory, even though the Government pas- is common for Cameroonians ask presented no evidence contrary, but serby traveling from Bamenda to Yaounde solely because behalf, carry international mail on their Eta-Ndu failed to obtain a letter from upon reaching post and to mail it office author, the second or from the typing in Yaounde. See A.R. at 472-74. Eta- school, as the noted. Eta-Ndu also hand-carrying Ndu also stated that corre- explain practice failed to of the custom; spondence a popular because returning school the documents back to slow, actually quicker official mail is so it is the remote branches for the author’s correspondence to mail international signature. This step additional would Yaounde, airport. which is close to the Id. *16 require hand-carrying another of the let- Krieger’s Dr. affidavit corroborated and ters to and from two regions remote explanation bolstered Eta-Ndu’s the about Cameroon, with coincidental arrival back hand-carrying custom of letters to postal postmark to the same office for mailing, explained why Yaounde for and day. on the same Dr. Christopher’s Mbu-Ag- and Professor Majority opinion, supra, pas- at 985. This postmarked bor’s letters were on the same an sage example majority is of how the has day. fairly failed to consider the record as a ... Mail service in haphaz- Cameroon is whole. ard, preferred way and the to send mail First, subjective an IJ’s believe that doc- get
overseas is to a letter to Yaounde or forged uments are unreliable or is an in- Douala, where the two air- international support sufficient basis to an adverse cred- located, Thus, ports are for mailing. INS, ibility finding. v. See Shah 220 F.3d any urgent mail considered be would (9th 1062, Cir.2000). 1071 person carried in Neither the or courier from Mamfe, Bamenda, nor any place “up- or Government the IJ asked Eta-Ndu to country” explain practice to those cities .... the whether school had returning addition, the documents back to the ... In I have heard that mail Cameroon, Yaounde, signa- remote for branches the author’s even is not [in] necessarily postmarked day single question on the that ture. There is not this it is mailed. the post signatures Sometimes office record about how the were ob- Cameroon, were which mailing the customs true that IJ it is Although tained. Krieger. Dr. signatures as corroborated over the concern cited his authen- he doubted the major reason record, majority has the light In of the letters, speculation was ticity of the evidentiary integrity doubting no basis for decision. the oral never articulated before had of issues Eta-Ndu never on the basis any notice that received never Eta-Ndu Nor is there explain. to opportunity the upon this premised concern was the IJ’s majority’s continued sus- any for the basis BIA, IJ, and the issue, the the yet on account of SDF letters picion into a zero-sum issue. make this majority same arrival back their “coincidental important, If was so this issue the same “postmark for on postal office sig- Eta-Ndu how should have asked 985, at since majority opinion, supra, day,” someone or whether were obtained natures discrepancies. explained Eta-Ndu these authors, for sign empowered was society operate does Cameroonian speculation. relying than on own rather States, matter identical to the United short, proffered reasons the “IJ’s IJ, point should be obvious and this on disbelieving” Eta-Ndu were based BIA, I af- majority. cannot man- conjecture about the mere “personal on such irrational firm a based decision written, is correspondence in which” ner grounds. in the and circulated Cameroonian signed, Kaur, “Speculation at 379 F.3d SDF. Documentary 2. Testimonial form the basis of an conjecture cannot Evidence in- credibility finding, must which adverse on substantial evidence.” stead based be Eta-Ndu, A.R. Testimony by see Jacob INS, (citation omitted); see also Id. Gui (Jacob’s 291; at Catherine Cir.2002). (9th Since (a 401; wife), at and Comfort Ateh see id. go on majority nothing has more 251, 255, all colleague), see id. were subjective IJ’s belief than the testimony. Krieger’s consistent with unreliable, the adverse were documents perse- accounts of The witnesses’ credibility as to those docu- determination also consis- cution of members were ments error. country reports various tent with the Moreover, it of discretion to part abuse of this record. Cameroon submitted as (located credibility finding when in Peti- make an adverse Trial See Exhibits *17 144, 281, petitioner’s to address a respec- at Appendix “fail[ed] tioners’ discrepancy inconsis- explanation for a or tively). Kaur, at As ex-
tency.” 887. multiple pieces also submitted Eta-Ndu above, are not plained frequently letters documentary support evidence of his of day they arrive at the postmarked on the majority asylum to which the application, postmaster The post office. accumulates supra gives mention. See opinion cursory it in on the postmarks mail and batches majority opinion pieces at 981. Three of office, regardless day post it leaves the warrant discussion. evidence mail at the office. post the arrived day First, from submitted letter Hence, nothing “coincidental” or there is magistrate with Bechem-Eyong-Eneke, fact that the two SDF suspicious about the for the Legal Department the Southwest postmark date. The letters bear the same Cameroon, Buea, who is also IJ, relentlessly refuse Province in BIA, majority and A.R. at This cousin. See 730. about Eta-Ndu’s acknowledge to record evidence original letter was to attached Eta-Ndu’s ther’s subsequent flight from Cameroon to application asylum. It documented Nigeria. This information is consistent and partic- Eta-Ndu’s father’s uncle’s with Magistrate Bechem’s letter and the SDF, ipation in the the murder of Eta- police report. These pieces three of docu- uncle, flight Ndu’s of Eta-Ndu’s father mentary evidence, in conjunc- considered Cameroon, from and subsequent place- tion with testimony (especially that of Dr. ment of Eta-Ndu on the “black list” of the Krieger), corroborated Eta-Ndu’s claims CPDM because of his affiliation with the of future on account of party. opinion.
Counsel for the Government suggested III. Conclusion that Magistrate the letter from Bechem suspicious. response, was Dr. A denial of asylum supported not that suspicions testified such oc- “hadn’t substantial evidence in this case. The ma- me, curred to I enough know about jority’s denial of is inexplicable. politics in local to truly No reasonable factfinder could fail to find suspicious have—be of what was reported that Eta-Ndu faces a possibili- reasonable about the families experience [sic ] and it’s ty of persecution in Cameroon, unless that flight Nigeria.... [sic ] I [¶] didn’t find persisted factfinder in an irrational refusal any suspicion set of bring against a case to acknowledge the testimony of Dr. testimony.” 229-30; at A.R. see also Krieger and the basic socio-economic and at id. cultural differences between the United Eta-Ndu’s claims about his uncle’s States and Cameroon. Krieger’s testi- death were farther corroborated the mony particularly was compelling, and nei- that, fact filing application his and after ther the Government nor the any IJ had testifying death, about his uncle’s Eta- basis expertise to doubt his or impeach his Ndu obtained a copy police report testimony. Indeed, there is a complete documenting his uncle’s death and a letter any explanation absence why as to discussing fathеr the uncle’s IJ, BIA, majority failed to acknowl- death. See A.R. at 589. The edge the thrust of Krieger’s testimony, police report indicated that the uncle’s highly which probative. body 11, 1994, was found March The majority is completely unjustified in A.M., about 6:00 “close mo- Mamfe concluding that “the IJ and the BIA cor- park,” tor uncle died as a rectly addressed Eta-Ndu’s corroboration gun result three shot wounds. Id. at explanations.” Majority opinion, su- 578. This information is with consistent pra, at 985-86. ignored The IJ testimony description of the death provided earli- explanations, entertained unfair evi- byer testimony Eta-Ndu’s and Magistrate demands, dentiary and based his ultimate Bechem’s letter. on an decision unsupported speculation. letter, above, father’s mentioned There is no substantial support- evidence was written on March 1998. Id. at 589. *18 ing IJ’s and the only BIA’s decision— It recounts events that after occurred speculation premised and doubt upon igno- Eta-Ndu’s father switched his allegiance rance. ruling party SDF, from the and Eta-Ndu’s application describes father’s activism on for of should behalf SDF, government agents’ granted. hаve attempts to To hold been otherwise question and record, misquotes harass father about fails to examine the son, uncle, the death of the whole, and the fa- record as a misapplies gov- majori- Under legal standard.
erning rubber provides court
ty’s approach, consti- oversight and to the BIA’s
stamp justice. of miscarriage gross
tutes
I dissent. America, of STATES
UNITED
Appellee, HICKS, Appellant.
Anthony
No. 04-1664. Appeals, of Court United States IA, for Rapids, Laverty, Anne M. Cedar Eighth Circuit. appellant. 19, 2004. Nov. Submitted: Reinert, Attor- Assistant U.S. J. Patrick IA, appellee. ney, Rapids, Cedar May Filed: BENTON, BEAM, SMITH, Before Judges. Circuit SMITH, Judge. Circuit (“Hicks”) T. Anthony Hicks (1) with in a indictment charged two-count grams 8.67 approximately distribution containing a detectable a mixture base, commonly called cocaine amount of having previously cocaine” been “crack offense, in felony drug of a viola- convicted 841(b)(1)(B), 841(a)(1), §§ tion of U.S.C. (2) conspiracy 2,§ and 18 U.S.C. of a grams more mixture to distribute 5 or of cocaine amount containing detectable cocaine,” base, “crack commonly called of a convicted felo- previously been having offense, U.S.C. ny drug violation 841(a)(1), 841(b)(1)(B), and 851. §§ charge conspiracy pled guilty to the Hicks Court for the in the District United States and was sen- District Iowa Northern imprisonment months to 151 tenced release. supervised Hicks eight years *19 argued appeal notice of timely filed a