Nyambi v. Gonzales ( 2006 )

Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 05-2692
SERGE NGITABAH NYAMBI,
Petitioner,
v.
ALBERTO R. GONZÁLES,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Lipez, Circuit Judges.
Theodore Nkwenti, on brief for petitioner.
Gina Walcott-Torres, Assistant United States Attorney, and
Michael J. Sullivan, United States Attorney, on brief for
respondent.
September 1, 2006
TORRUELLA, Circuit Judge. Petitioner Serge Ngitabah
Nyambi ("Nyambi") asks us to review the Board of Immigration
Appeals' ("BIA") denial of his application for asylum, withholding
of removal, and relief under the Convention Against Torture
("CAT"). After careful review, we deny the petition for review.
I. Background
Nyambi is a native and citizen of Cameroon who entered
the United States at New York City on October 6, 1999. He was
admitted to the United States on the basis of a fraudulent passport
and tourist visa. On June 6, 2000, Nyambi filed an application for
asylum and withholding of removal.1
On February 13, 2001, the Immigration and Naturalization
Service ("INS")2 served Nyambi with a Notice to Appear ("NTA"),
charging him with removability for failure to possess a valid entry
document pursuant to section 237(a)(1)(A) of the Immigration and
Nationality Act ("INA"), 8 U.S.C. § 1227(a)(1)(A). Nyambi conceded
1
The Asylum Officer in his Assessment to Refer mentions an
earlier application for asylum, filed on March 17, 2000. For the
purposes of this appeal, we will analyze the most recent
application. The March 17 application does not appear to be on
record.
2
In March 2003, all of the relevant functions of the INS were
transferred to the new Department of Homeland Security, where they
were reorganized as the Bureau of Immigration and Customs
Enforcement ("BICE"). See Homeland Security Act of 2002, Pub. L.
No. 107-296, § 471(a), 116 Stat. 2135, 2205 (codified as amended at
6 U.S.C. § 291(a)).
-2-
removability, renewed his application for asylum and withholding of
removal, and sought CAT relief.
On the same date, Nyambi appeared before an Asylum
Officer ("AO") for an interview. Nyambi testified that he was
raped during the 1992 and 1998 detentions. The AO concluded that
Nyambi was not credible and referred the matter to an Immigration
Judge ("IJ").
On September 27, 2002, Nyambi appeared at the removal
hearing before the IJ. The relevant details of his testimony are
set out below.
Nyambi testified that he was a Cameroonian citizen, and
that he fled Cameroon because of political oppression. He further
testified that he was a member of two Cameroonian opposition
groups, the Social Democratic Front ("SDF") and the Southern
Cameroon National Council ("SCNC").
According to Nyambi, the SDF, formed on May 26, 1990, is
a political group fighting against the "ones [sic] party system in
Cameroon." Nyambi alleged that he joined the SDF at its inception
and participated in meetings, symposiums, and rallies. He
testified that he became a member of the SCNC in 1997 during his
last year in high school. The SCNC was a political group that
aimed at securing the independence for the Anglophone part of
Cameroon. Nyambi also stated that he was a prominent member of the
group and that he tried to "sensitize the people to make them
-3-
understand how important it was to be a part of that group."
Nyambi also distributed flyers and took part in "a lot of rallies."
Nyambi alleged that he was detained, beaten, and
maltreated by the police on three occasions. The first detention,
lasting nearly two months, occurred in 1990 at the Brigade Mobile
Mixte headquarters in the city of Bamenda. There, Nyambi was
beaten and tortured. Nyambi's father negotiated his son's release
for a sum of 50,000 francs. The second detention allegedly
occurred in October 1992, after the Cameroonian presidential
election. Nyambi declared that he was arrested by the government's
security forces and detained in a prison in Yaounde. Nyambi
testified that he was forced to crawl together with the other
inmates on a wet floor, while the guards beat them with clubs. One
month after the 1992 arrest, Nyambi allegedly escaped from the
correctional facility when the detainees were taken to town to
perform some work. The third detention occurred between
November 24, 1998 and October 4, 1999. Nyambi testified that he
was arrested at a peaceful SCNC demonstration and detained in the
Kondengui prison in Yaounde. Nyambi's father negotiated his
release and provided him with a passport and visa to the United
States.
After further questioning by the IJ, Nyambi first
testified that he was raped during the 1990 and 1992 detentions,
then he testified that he was raped during the 1992 and 1998
-4-
detentions. Finally, Nyambi declared that he knew he was raped
twice but that he was "kind of mixed up" about the dates.
Nyambi also introduced his father's affidavit into
evidence. This affidavit generally corroborated Nyambi's
allegations, averring that Nyambi was "gruesomely sodomized" during
the 1990 detention. The affidavit also stated that Nyambi was
released from the 1992 detention due to his critical health.
Nyambi stated that his father's affidavit is incorrect because it
contradicted Nyambi's own previous testimony that he escaped from
the 1992 detention. Nyambi also introduced into evidence his SDF
membership card and driver's license. Nyambi alleged that his
father paid the SDF renewal dues on his behalf and thus obtained
the SDF card. Nyambi presented an undated medical legal
certificate to document his 1990 rape.
The IJ denied Nyambi's application for asylum,
withholding of removal, and CAT relief, but granted him voluntary
departure. In her oral decision, the IJ made an adverse
credibility finding based on Nyambi's inconsistent testimony
regarding the dates of the sexual abuses. Before the AO, Nyambi
declared that he was raped in 1992 and 1998. Before the IJ, Nyambi
testified initially that he was raped in 1990 and 1992 but then
testified that he was "mixed up" about the dates.
The IJ also concluded that Nyambi's submitted documentary
evidence did not "rehabilitate the respondent from his unpersuasive
-5-
and not incredible [sic] testimony." The IJ pointed to several
pieces of evidence to support its reasoning. First, Nyambi himself
attacked the accuracy of his father's affidavit with respect to the
second detention. Second, the medical legal certificate was
undated. Third, the SDF card was issued on January 15, 1999, while
Nyambi was in prison. Fourth, Nyambi's driver's license was dated
January 12, 2000, when Nyambi was allegedly in the United States.
Nyambi appealed the IJ's decision to BIA. On
September 12, 2005, the BIA affirmed the decision of the IJ noting
that "the [IJ's] adverse credibility finding was based upon
conspicuous, inadequately-explained discrepancies in the
respondent's testimony and between his testimony and the affidavits
he submitted in support of his claim." Nyambi now petitions for
review of this decision.3
II. Analysis
A. Standard of Review
Ordinarily, we are limited to reviewing the decision of
the BIA without more. Albathani v. INS, 318 F.3d 365, 373 (1st
Cir. 2003). However, where the BIA defers to the IJ's reasons for
denying a petitioner's claims, we view those portions of the IJ's
3
Nyambi does not make any argument about the CAT relief in his
appellate brief. Therefore, we deem that issue waived. Nikijuluw
v. Gonzáles, 427 F.3d 115, 120 n.3 (1st Cir. 2005) ("[I]ssues
adverted to in a perfunctory manner unaccompanied by some effort at
developed argumentation, are deemed waived.") (citation and
internal quotation marks omitted).
-6-
decision as incorporated into the final agency determination. See
Hernández-Barrera v. Ashcroft, 373 F.3d 9, 20 (1st Cir. 2004). We
review the BIA's decisions under the deferential "substantial
evidence standard." Mihaylov v. Ashcroft, 379 F.3d 15, 17 (1st
Cir. 2004). See also 8 U.S.C. § 1252(b)(4)(B) ("[T]he
administrative findings of fact are conclusive unless any
reasonable adjudicator would be compelled to conclude to the
contrary."). We must accept the agency's findings of fact so long
as they are "supported by reasonable, substantial, and probative
evidence on the record considered as a whole." INS v. Elías-
Zacarías, 502 U.S. 478, 481 (1992).
B. Asylum
An alien has the burden of establishing that he is
eligible for asylum. 8 U.S.C. § 1158(b)(1)(B)(i). To establish
eligibility for asylum, an alien must show either past persecution
or a well-founded fear of persecution motivated by "race, religion,
nationality, membership in a particular social group, or political
opinion." 8 U.S.C. § 1101(a)(42)(A); see also Albathani, 318 F.3d
at 373. Any asylum seeker who has established past persecution is
entitled to a rebuttable presumption of a well-founded fear of
persecution. 8 C.F.R. § 1208.13(b)(1).
The applicant's testimony, if uncorroborated by
convincing evidence, must be credible, persuasive, and refer to
specific facts. 8 U.S.C. § 1158(b)(1)(B)(ii). The credibility
-7-
determination may be based on the internal consistency of each of
the applicant's statements and "the consistency of such statements
with other evidence of record." Id. § 1158(b)(1)(B)(iii). "[I]n
the case of an adverse credibility determination, the IJ must offer
a specific, cogent reason for [her] disbelief." Mihaylov, 379 F.3d
at 21. "[The] adverse credibility determination cannot rest on
trivia but must be based on discrepancies that 'involved the heart
of the asylum claim.'" Bojorques-Villanueva v. INS, 194 F.3d 14,
16 (1st Cir. 1999) (citation omitted).
In the instant case, the IJ supported her adverse
credibility determination by pointing out several inconsistencies
in Nyambi's statements relating to the rape incidents, which are
central to his asylum claim. As the IJ correctly noted, Nyambi
stated in his asylum application that the first detention in 1990
"will remain the most traumatic." Nyambi also stated that he was
sexually abused during the first detention. However, Nyambi failed
to mention this before the AO, despite the fact that the 1990
detention was allegedly the "most traumatic" incident. Before the
IJ, Nyambi first testified that he was raped during the 1990 and
1992 detentions, then testified that he was raped during the 1992
and 1998 detentions. Eventually he testified that he could not
remember during which of the detentions he was raped. The medical
legal certificate introduced by Nyambi to corroborate his testimony
regarding the 1990 rape does not resolve the discrepancy because it
-8-
is undated. These inconsistencies reach to the heart of Nyambi's
claims. Compare Ye v. Gonzáles, 446 F.3d 289, 295 (2d Cir. 2006)
(finding that the omission from the asylum application of a three
day detention accompanied by beatings is a material inconsistency)
with Hoxha v. Gonzáles, 446 F.3d 210, 217 (1st Cir. 2006) (noting
that "[m]inor inconsistencies in the record such as discrepancies
in dates which reveal nothing about an asylum applicant's fear for
his safety are not an adequate basis for an adverse credibility
finding.") (citation and internal quotations marks omitted).
Because the rape incidents were central to Nyambi's claim, we find
that the BIA's affirmance of the IJ's adverse credibility
determination was supported by specific, cogent reasons.
The IJ gave additional reasons for her adverse
credibility finding. First, the IJ did not assign any weight to
Nyambi's father's affidavit, basing her ruling on Nyambi's own
testimony that the affidavit was incorrect with respect to the 1992
escape. Second, the IJ noted that Nyambi could not explain the
issuance date of his SDF card.4 Third, Nyambi's driving license
raised concerns about its accuracy, since it was dated January 12,
2000, when Nyambi was allegedly in the United States. We do not
find anything on the record that would compel a reasonable trier of
4
The SDF card was issued on January 15, 1999 when Nyambi was
allegedly in prison. Nyambi declared that his father paid the
renewal dues and obtained the card. Nonetheless, Nyambi did not
show any previous SDF membership cards, although he claimed that he
had joined the SDF in 1990.
-9-
fact to reverse the BIA's finding of adverse credibility.
Therefore, we affirm the BIA's determination. Because "a fully
supported adverse credibility determination, without more, can
sustain a denial of asylum," Olujoke v. Gonzáles, 411 F.3d 16, 22
(1st Cir. 2005), we find Nyambi not eligible for asylum.
C. Withholding of Removal
Having failed to establish eligibility for asylum, Nyambi
cannot meet the more stringent standard for withholding of removal.
See Albathani, 318 F.3d at 372. Therefore, we find that Nyambi
failed to establish eligibility for withholding of removal.
III. Conclusion
For the reasons stated above, the petition for review is
denied.
Denied.
-10-