Tene v. Gonzales , 231 F. App'x 302 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-1620
RAPHAEL TENE,
Petitioner,
versus
ALBERTO R. GONZALES, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals. (A97-622-062)
Submitted: May 30, 2007 Decided: July 6, 2007
Before NIEMEYER, GREGORY, and DUNCAN, Circuit Judges.
Petition granted by unpublished per curiam opinion.
Ana T. Jacobs, ANA T. JACOBS & ASSOCIATES, P.C., Washington, D.C.,
for Petitioner. Peter D. Keisler, Assistant Attorney General,
Carol Federighi, Senior Litigation Counsel, Robert L. Gulley,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Raphael Tene, a native and citizen of Cameroon, petitions
for review of the Board of Immigration Appeals’ (“Board”) order
affirming the immigration judge’s decision denying Tene’s
application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”).
Tene’s claims for relief are predicated on his assertion
that Cameroonian government officials persecuted him on account of
his involvement with political groups that oppose the ruling party
in Cameroon. In an affidavit submitted in support of his asylum
application, Tene averred that he had been arrested, detained, and
tortured in 1992, 1993, and 2002 because of his political opinion.
Tene presented both corroborating documentation and witness
testimony to establish that he had in fact been arrested, beaten,
and persecuted as he claimed.
The immigration judge (“IJ”) denied Tene’s claims for
relief. In doing so, the IJ explained that, to the extent that
Tene’s prior arrests “constituted past persecution on account of
the respondent’s political opinion, at this time [respondent]
clearly has no well-founded fear of persecution based on those
events and that is because in June 2002 the respondent was issued
a Cameroonian passport by the government.” The IJ concluded that
Tene’s “fear based on events in 1992 and 1993 cannot be said to be
objectively reasonable, nor is [that] fear . . . subjectively
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genuine.” Although the IJ found Tene had produced “some credible
corroboration” regarding his prior arrests, the IJ nonetheless
declined to grant asylum in the exercise of her discretion.
On appeal to the Board, Tene argued, among other issues,
that the IJ erred in failing to consider whether Tene established
past persecution such that he would be entitled to a rebuttable
presumption of a well-founded fear of future persecution. Tene
maintained that his prior arrests and detentions constituted past
persecution on account of his political opinion, and that the
Government had not shown a fundamental change in circumstances or
that relocation within Cameroon was possible so to overcome the
presumption.
In denying Tene’s appeal, the Board found that Tene
“failed to prove that his arrests in 1992 and 1993 constituted a
basis for relief.” Although Tene had testified regarding the 1992
and 1993 arrests and “provided corroborative evidence” to establish
the arrests, the Board nonetheless concluded that, because the
Cameroonian government issued Tene a passport after these arrests,
Tene was not a “refugee” within the meaning of the Immigration and
Nationality Act, “because he left his country and was able to and
willing to return.” The Board further noted that, even assuming
Tene had established past persecution, he was not entitled to
relief because he did not demonstrate “a well-founded fear of
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future persecution because he left Cameroon without any problems
and returned without fear or problems.”
Although Tene raises several issues in his petition for
review, Tene’s argument regarding his past persecution claim is
dispositive.1 Tene argues that his application and corroborating
evidence demonstrated that he suffered past persecution, thus
entitling him to a rebuttable presumption of a well-founded fear of
future persecution. Because the Government did not rebut this
presumption, Tene contends, the IJ and the Board erred in denying
him relief. For the reasons outlined below, we remand this case to
the Board for further examination of this issue.
The Immigration and Nationality Act (“INA”) authorizes
the Attorney General to confer asylum on any refugee. 8 U.S.C.
§ 1158(a) (2000). A “refugee” is defined as a person unwilling or
unable to return to his native country “because of persecution or
a well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42)(A) (2000). “Persecution involves
the infliction or threat of death, torture, or injury to one’s
person or freedom, on account of one of the enumerated grounds.”
Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal
quotation marks and citations omitted).
1
Tene also challenges the IJ’s conclusion that he does not
have a well-founded fear of future persecution. We express no
opinion on the merit of this issue at this juncture.
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“Applicants bear the burden of proving eligibility for
asylum.” Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006);
see 8 C.F.R. § 1208.13(a) (2006). An applicant can establish
refugee status based on past persecution in his native country on
account of a protected ground. 8 C.F.R. § 1208.13(b)(1) (2006).
“[A]n applicant who demonstrates that [he] was the victim of past
persecution on the basis of a protected ground is presumed to have
a well-founded fear of future persecution.” Essohou v. Gonzales,
471 F.3d 518, 520 (4th Cir. 2006) (citing 8 C.F.R.
§ 1208.13(b)(1)). This presumption can be rebutted on a finding of
a fundamental change of circumstances so that the alien no longer
has a well-founded fear, or a finding that the alien could avoid
persecution by relocating within the country of removal. Id.; 8
C.F.R. § 1208.13(b)(1)(i)(A), (B) (2006). “The Service bears the
burden of proof for rebutting the presumption.” Naizgi, 455 F.3d
at 486.
The central issue in this case is whether Tene met his
burden of proof to establish past persecution, thus entitling him
to a presumption — albeit a rebuttable presumption — of a well-
founded fear of future persecution. The IJ did not squarely
address this issue in her oral decision, instead simply noting
that, “to the extent that . . . the arrests and detentions of 1992
and 1993 constituted past persecution on account of the
respondent’s political opinion, at this time [Tene] clearly has no
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well-founded fear of persecution . . . because respondent was
issued a Cameroonian passport.” The Board did not clarify the IJ’s
ruling; instead, the Board adopted the IJ’s line of reasoning,
agreeing that, even assuming Tene suffered past persecution, “he
did not have a well-founded fear of future persecution because he
left Cameroon without any problems and returned without fear or
problems.”
This case presents facts similar to those we considered
in Naizgi. There, the IJ specifically found that Naizgi had
established past persecution; however, because the IJ granted
Naizgi asylum on discretionary grounds, the IJ did not consider
whether the Government had presented sufficient evidence to
overcome the presumption of a well-founded fear of future
persecution that arose because of that finding. Naizgi, 455 F.3d
at 486-87. On appeal, the Board reversed the IJ’s grant of
discretionary asylum. Though it did not reverse the IJ’s finding
that Naizgi suffered past persecution, the Board nonetheless
rejected Naizgi’s asylum claim, concluding that Naizgi did not have
a well-founded fear of future persecution. Id. at 487. The Board
did not consider whether changed circumstances rebutted the
presumption of a well-founded fear of future persecution. Id. at
487-88. Although we affirmed the Board’s reversal of discretionary
asylum, we concluded that neither the IJ nor the Board adequately
addressed whether the presumption that arose upon Naizgi’s
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establishment of past persecution had been rebutted. Id. at 488-
89. Accordingly, we vacated the Board’s removal order and remanded
for further proceedings.
Naizgi dictates the disposition of the instant petition.
Here, unlike in Naizgi, the IJ did not make an express
determination that the 1992 and 1993 arrests constituted past
persecution; however, she did state that, “even if” the 1992 and
1993 arrests constituted past persecution, Tene did not have a
well-founded fear of future persecution. Thus, it appears the IJ
assumed, at least for the sake of argument, that the 1992 and 1993
arrests constituted past persecution. In light of this assumption,
the IJ erred as a matter of law in failing to afford Tene the
benefit of the rebuttable presumption of a well-founded fear of
future persecution that arises upon such a determination. Essohou,
471 F.3d at 520. This presumption can only be rebutted if the
Government proves, by preponderance of the evidence, that there has
been a fundamental change in circumstances or that relocation
within the designated country is possible. Id.; 8 C.F.R.
§ 1208.13(b)(1)(i)(A), (B). Although the IJ’s discussion of Tene’s
receipt of a Cameroonian passport and Tene’s use of the passport to
travel safely to and from the Ivory Coast at least marginally
relates to the “change in circumstances,” because no express
finding of changed circumstances was made, the IJ’s opinion is
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insufficient. Naizgi, 455 F.3d at 488-89. In affirming the IJ’s
decision based on this reasoning, the Board similarly erred.
Neither the Board nor the IJ fully considered whether
Tene carried his burden of proof to establish past persecution and,
if so, whether the Government rebutted the presumption that arose
as a result. Accordingly, we remand this case to the Board for
further consideration of these issues. See INS v. Ventura, 537
U.S. 12, 16 (2002); see also Gonzales v. Thomas, 547 U.S. 183, 126
S. Ct. 1613, 1615 (2006) (per curiam); cf. Hussain v. Gonzales, 477
F.3d 153, 157-58 (4th Cir. 2007) (holding that “rare circumstances”
exception to Ventura’s agency remand rule applies when the issue to
be addressed is legal rather than factual, and the denial of relief
is a foregone conclusion, such that remand to the agency would be
“a mere formality”). Because the issues relevant to the gaps in
the IJ’s and the Board’s fact-finding regarding the significance of
Tene’s prior arrests are equally dispositive of Tene’s withholding
of removal claim, we remand this claim for further consideration as
well.2
As a final matter, we turn to Tene’s claim that the IJ
improperly admitted documentary evidence from his asylum hearing,
namely the asylum officer’s notes from his asylum interview,
assessment to refer, and record of oaths. We address this issue
2
Because he did not challenge the Board’s denial of CAT
relief, Tene has waived review of that issue. See Edwards v. City
of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).
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because, if the IJ did err in admitting these documents, they would
have to be excluded from the body of evidence evaluated by the
Board on remand.
Whether evidence is admissible at an administrative
hearing on a petition for removal is governed by due process
considerations, not the Federal Rules of Evidence. Hassan v.
Gonzales, 403 F.3d 429, 435 (6th Cir. 2005). Admissibility of
evidence is governed by “whether the evidence is probative and
whether its use is fundamentally fair.” Ezeagwuna v. Ashcroft, 325
F.3d 396, 405 (3d Cir. 2003) (internal quotations and citations
omitted). Fairness is determined by whether the evidence is
trustworthy and reliable. Id.We have reviewed the documents and conclude that the IJ
correctly determined they bore sufficient indicia of reliability to
support admission. Most significantly, the asylum officer’s notes
on Tene’s hearing testimony are entirely consistent with Tene’s
version of events as set forth in his first asylum application.
Because these documents were properly admitted, the Board may
consider them when evaluating the body of evidence relevant to the
issues on remand.
For the foregoing reasons, we grant the petition for
review and remand for an agency determination on Tene’s asylum and
withholding of removal claims with regard to the past persecution
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issue.3 We dispense with oral argument because the facts and legal
contentions are adequately presented in the materials before the
court and argument would not aid the decisional process.
PETITION GRANTED
3
By this disposition, we indicate no view of the merits of the
issues to be considered on remand.
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