Bockou Essohou v. Gonzales ( 2006 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
NELLY IMELDA BOCKOU ESSOHOU, 
Petitioner,
v.
 No. 05-2421
ALBERTO R. GONZALES, Attorney
General of the United States,
Respondent.

On Petition for Review of an Order of
the Board of Immigration Appeals.
(A96-271-698)
Argued: October 25, 2006
Decided: December 15, 2006
Before KING, GREGORY, and SHEDD, Circuit Judges.
Petition for review granted; vacated and remanded by published opin-
ion. Judge Shedd wrote the opinion, in which Judge King and Judge
Gregory concurred.
COUNSEL
ARGUED: Alan Mitchell Parra, Bethesda, Maryland, for Petitioner.
Norman Louis Rave, Jr., UNITED STATES DEPARTMENT OF
JUSTICE, Environment and Natural Resources Division, Environ-
ment Defense Section, Washington, D.C., for Respondent. ON
BRIEF: Peter D. Keisler, Assistant Attorney General, M. Jocelyn
Lopez Wright, Assistant Director, Office of Immigration Litigation,
2 BOCKOU ESSOHOU v. GONZALES
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
SHEDD, Circuit Judge:
Nelly Imelda Bockou Essohou, a native and citizen of the Republic
of the Congo, entered the United States in October 2001. She was
admitted as a nonimmigrant and authorized to remain until late Janu-
ary 2002. In April 2003, the Immigration and Naturalization Service
("INS") served her with a Notice to Appear at removal proceedings.1
Subsequently, she applied for asylum, withholding of removal, and
protection under the Convention Against Torture ("CAT"). She con-
ceded removability. An Immigration Judge ("IJ") denied Bockou
Essohou’s applications, finding that she failed to establish refugee sta-
tus. Bockou Essohou appealed the IJ’s decision to the Board of Immi-
gration Appeals ("Board"), which reversed the IJ’s findings on
refugee status but dismissed her appeal on alternate grounds. Bockou
Essohou now petitions for review of the Board’s decision. For the rea-
sons that follow, we grant the petition for review, vacate the Board’s
decision, and remand this case for further proceedings consistent with
this opinion.
I
The Immigration and Nationality Act ("INA") permits the Attorney
General to confer asylum on any refugee. 8 U.S.C. § 1158(b). A refu-
gee is an applicant who is unable or unwilling to return to the country
of removal "because of persecution or a well-founded fear of persecu-
tion on account of race, religion, nationality, membership in a particu-
lar social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The
applicant bears the burden of making such a showing. Naizgi v. Gon-
zales, 455 F.3d 484, 486 (4th Cir. 2006). However, an applicant who
demonstrates that she was the victim of past persecution on the basis
1
The handling of this matter was subsequently transferred to the
Department of Homeland Security ("Department").
BOCKOU ESSOHOU v. GONZALES 3
of a protected ground is presumed to have a well-founded fear of
future persecution. 8 C.F.R. § 1208.13(b)(1). The Department may
rebut this presumption by demonstrating by a preponderance of the
evidence either "a fundamental change in circumstances such that the
applicant no longer has a well-founded fear of persecution" or that the
applicant could avoid future persecution by internally relocating to
another part of the country and it would be reasonably possible to do
so. 8 C.F.R. §§ 1208.13(b)(1)(i)(A), (b)(1)(i)(B), (b)(1)(ii).
On appeal, we afford substantial — but not unlimited — deference
to the Board’s decision regarding an order of removal, applying the
narrow standards of review mandated by Congress. See Ngarurih v.
Ashcroft, 371 F.3d 182, 184 (4th Cir. 2004). Ultimately, we will
uphold the Board’s decision unless it is "manifestly contrary to law."
8 U.S.C. § 1252(b)(4)(C). In making this determination, we review
the Board’s factual findings under a substantial evidence standard,
affirming the Board unless no reasonable factfinder could agree with
the Board’s conclusions. Gandziami-Mickhou v. Gonzales, 445 F.3d
351, 354 (4th Cir. 2006). Indeed, we must affirm findings of fact
unless "any reasonable adjudicator would be compelled to conclude
to the contrary." 8 U.S.C. § 1252(b)(4)(B). Likewise, we defer to the
Board’s credibility findings that are supported by substantial evi-
dence. Camara v. Ashcroft, 378 F.3d 361, 367 (4th Cir. 2004).
II
A.
In 1997, Bockou Essohou resided in the Republic of the Congo,
where she was a member of the Congolese Movement for Democracy
and Integral Development ("MCDDI"). As a member of the MCDDI,
Bockou Essohou helped organize efforts to educate young people
about the party’s presidential candidate. Following the outbreak of
civil war in 1997, the "Cobras," a paramilitary group aligned with the
sitting president and opposed to the MCDDI’s presidential candidate,
came to Bockou Essohou’s home. The Cobras broke down Bockou
Essohou’s door, searched her home, forcibly removed her from hiding
under her bed, and beat and raped her. Eventually, Bockou Essohou
lost consciousness. When she awoke, Bockou Essohou was incarcer-
ated and only partially clothed. Bockou Essohou remained in deten-
4 BOCKOU ESSOHOU v. GONZALES
tion for at least two months, during which time the Cobras continued
to abuse her. Significantly, the Cobras questioned Bockou Essohou
about her affiliation with the MCDDI, particularly the location of her
MCDDI colleagues.
Around August of 1997, Bockou Essohou escaped and began hid-
ing from the Cobras for a period that spanned approximately four
years. Initially, she fled to the Democratic Republic of the Congo,
where she remained for only a brief time. At one point, Bockou Esso-
hou stayed three days in a refugee camp there, but she left because
the conditions were poor and rape was prevalent. Eventually, Bockou
Essohou decided to return to the Republic of the Congo. She returned
to her village in the Pool region and stayed for two years. Thereafter,
Bockou Essohou decided to go to Brazzaville, where her mother
lived. Bockou Essohou’s mother begged her not to live there because
the Cobras were in that area and people had been inquiring about her.
Accordingly, Bockou Essohou went to live with a girlfriend in
another district.
Bockou Essohou lived undisturbed with the girlfriend for about
two months. After two months, the Cobras found out where Bockou
Essohou was living. One day, while Bockou Essohou was not at
home, the Cobras ransacked the girlfriend’s house searching for
Bockou Essohou. They threatened to kill the girlfriend if she did not
turn Bockou Essohou over to them. When Bockou Essohou came
home, the girlfriend arranged for her to live with the girlfriend’s par-
ents in the village of Banzandouga.
Once in Banzandouga, Bockou Essohou lived for approximately 20
months without detection by the Cobras. The Cobras eventually came
to the village, and Bockou Essohou became fearful that they would
find her and kill her. At that time, the girlfriend’s parents helped
Bockou Essohou procure documentation and leave the country. After
leaving the Republic of the Congo, Bockou Essohou resided in France
for 20 days before coming to the United States.
B.
In an oral decision, the IJ denied Bockou Essohou’s application for
asylum. The IJ reasoned that Bockou Essohou could not demonstrate
BOCKOU ESSOHOU v. GONZALES 5
past persecution on the basis of a political opinion or any of the other
statutory grounds for conferring refugee status. To the contrary, the
IJ believed that Bockou Essohou was merely a victim of civil vio-
lence. The IJ made no clear adverse credibility finding with regard to
most of Bockou Essohou’s testimony; however, the IJ found it "sus-
pect" that "someone like" Bockou Essohou would be questioned
regarding the location of the MCDDI leader. The IJ found this portion
of Bockou Essohou’s story unbelievable, absent some independent
corroboration. Therefore, the IJ held that Bockou Essohou was not
entitled to a presumption of future persecution under 8 C.F.R.
§ 1208.13(b)(1). The IJ also found that Bockou Essohou had not oth-
erwise carried her burden of demonstrating a well-founded fear of
future persecution on the basis of a protected ground.
On appeal, the Board rejected the IJ’s finding that Bockou Esso-
hou’s past persecution was not on the basis of one of the enumerated
protected grounds, concluding that the interrogation about her
MCDDI affiliates indicated that her mistreatment was due, at least in
part, to her political affiliation. Notwithstanding this determination,
the Board found that the Department had rebutted the presumption
that Bockou Essohou would be persecuted in the future. Specifically,
the Board found that Bockou Essohou "was able to live undisturbed
for 20-plus months," which established her ability reasonably to relo-
cate internally. J.A. 3. Throughout its opinion, the Board expressly
treated Bockou Essohou’s testimony as credible.
III
In her petition for review, Bockou Essohou argues that the Board
erred by finding that the Department rebutted the presumption of
future persecution. We agree. At the removal hearing, Bockou Esso-
hou testified that the Cobras were sent to Banzandouga to check in
the village. In addition, Bockou Essohou described the situation in
Banzandouga as "hopeless," and she claimed that the Cobras would
have killed her if they had found her. On cross examination, Bockou
Essohou further explained her time in Banzandouga, testifying that
she had problems with the Cobras when they found out she was in
hiding there. Though Bockou Essohou was able to avoid specific
problems with the Cobras by fleeing the country, her testimony
6 BOCKOU ESSOHOU v. GONZALES
reveals her continued, general fear of the Cobras while in the Repub-
lic of the Congo.
Given that the Board accepted the credibility of Bockou Essohou’s
testimony, its ultimate conclusion that she could reasonably relocate
internally is not supported by substantial evidence. Reading the record
as a whole, we conclude that no reasonable adjudicator could find that
Bockou Essohou was undisturbed while in hiding in Banzandouga. To
the contrary, the only reasonable reading of Bockou Essohou’s testi-
mony reveals a four-year period in which she was in hiding, con-
stantly fearing for her life. Any intermittent period in which Bockou
Essohou was not specifically troubled by the Cobras was not due to
a reasonable, internal relocation; rather, it was due to her efforts to
hide in conjunction with the timing of the Cobras’ forays. Accord-
ingly, the Department did not rebut the presumption of future perse-
cution that arose from the Board’s finding of past persecution. We
hold that the Board’s failure to account for this presumption in
Bockou Essohou’s favor renders its decision to dismiss the appeal
manifestly contrary to law.
IV
For the foregoing reasons, we grant Bockou Essohou’s petition for
review, vacate the Board’s decision, and remand for further proceed-
ings consistent with this opinion.2
PETITION FOR REVIEW GRANTED;
VACATED AND REMANDED
2
The Board based its disposition of Bockou Essohou’s withholding of
removal and CAT claims on substantially the same analysis that con-
trolled its decision regarding her application for asylum. Because we
vacate the Board’s asylum determination, we need not independently
address the withholding of removal and CAT claims.