Agbornchong v. Holder , 383 F. App'x 319 ( 2010 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1323
DIANA BESSEM AGBORNCHONG,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 23, 2010 Decided: June 17, 2010
Before NIEMEYER and SHEDD, Circuit Judges, and James A. BEATY,
Jr., Chief United States District Judge for the Middle District
of North Carolina, sitting by designation.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Joshua A. Moses, JOSHUA MOSES & ASSOCIATES, Silver
Spring, Maryland, for Petitioner. Rebecca Ariel Hoffberg,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent. ON BRIEF: Tony
West, Assistant Attorney General, Civil Division, William C.
Peachey, Assistant Director, Paul T. Cygnarowicz, Trial
Attorney, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Office of Immigration Litigation, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Petitioner Diana Bessem Agbornchong (APetitioner@), an alien
and native of Cameroon, has filed a petition for review seeking
review of an order by the Board of Immigration Appeals (ABoard@)
dismissing her appeal from the Immigration Judge=s (AIJ@) order
that denied her applications for asylum, withholding of removal,
and protection under the Convention Against Torture (ACAT@).
Petitioner challenges the IJ=s determination, which was affirmed
by the Board, that she failed to establish that the government
of Cameroon would impute political opinions to her that would
result in her persecution. For the reasons that follow, the
determinations of the IJ and the Board are affirmed, and the
petition for review is denied.
I.
Petitioner first entered the United States on November 10,
2004 as a visitor, being authorized to remain in the country
until May 10, 2005. However, Petitioner did not leave the
country by this date, and on November 9, 2005, she timely filed
an application for asylum, as well as for withholding of removal
and CAT protection. On August 7, 2007, Petitioner appeared
before the IJ for a hearing on her applications. Petitioner=s
application for asylum, which lays out the basis of her claims,
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states that while in Cameroon, she began working in 1985 as a
housekeeper and nanny for Captain Njang (ANjang@). Njang was a
former military captain and founding member of the Southern
Cameroons National Council (ASCNC@), a political organization of
English-speaking Cameroonians advocating secession. The SCNC
regularly held meetings at Njang=s home, where Petitioner
received guests and prepared food for SCNC members. At no
point, however, was Petitioner a member of the SCNC, and
Petitioner freely admits that she was never familiar with the
group=s political activities or viewpoints. Nonetheless, Njang
would routinely present Petitioner with documents after each
SCNC meeting to store for safekeeping. Petitioner claims that
although she had no knowledge regarding these documents=
contents, she was questioned by police on one occasion about the
documents during her employ with Njang, but she was never
arrested.
Following Njang=s death in 2000, Petitioner maintains that
she relinquished a briefcase containing various documents and
personal effects to Njang=s relatives and went into hiding.
During this period, Petitioner began working for a non-profit
organization run by Njang=s sister, which was closed by the
Cameroonian government in October 2003 after the government
discovered that SCNC meetings were being held at the
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organization=s facility. Thereafter, Petitioner claims that she
hid in a local village while she was obtaining travel documents.
In January 2004, Petitioner maintains that government police
came to the village, searching for her in relation to Njang=s
documents, but that Petitioner was able to evade the authorities
at that time. Petitioner subsequently obtained an official
Cameroonian passport and a visa from the U.S. Embassy, and with
the aid of Njang=s former girlfriend, Petitioner arrived at the
airport and boarded a plane for the United States on November
10, 2004.
At the hearing before the IJ, Petitioner=s testimony was for
the most part consistent with the account laid out in her asylum
application, and the basic details of Petitioner=s account were
likewise corroborated by several witnesses and affidavits.
Petitioner testified that she fears being arrested if returned
to the country because of her connection with Njang and the
SCNC. She also presented the testimony of Njang=s brother that a
warrant is pending for Petitioner=s arrest in Cameroon; however,
no copy of an arrest warrant was ever presented at the hearing.
The IJ denied all of Petitioner=s claims, finding that with
regard to the asylum claim, Petitioner had not established a
nexus between her fear of future persecution and a protected
ground, namely political opinion. The IJ=s decision was
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subsequently upheld by the Board in an order dated February 27,
2009. Petitioner filed a timely petition for review of the
denial of her claims for asylum and withholding of removal. 1
II.
A.
AThe scope of our review of a final order of removal denying
asylum is narrow.@ Dankam v. Gonzales, 495 F.3d 113, 119 (4th
Cir. 2007). When asylum is denied on the grounds that the
evidentiary burden for establishing eligibility has not been
met, Awe review for substantial evidence and must affirm a
determination of statutory ineligibility by the [Board] unless
the evidence presented was so compelling that no reasonable
factfinder could fail to find eligibility for asylum.@ Id.(internal quotation marks omitted). Here, as in all cases where
the Board affirms and supplements an order by the IJ, the
factual findings and reasoning contained in both decisions are
subject to judicial review. Niang v. Gonzales, 492 F.3d 505,
1
Petitioner also initially filed a petition for protection
under the Convention Against Torture (ACAT@) which was denied by
both the IJ and the Board. In her petition for review, however,
Petitioner did not challenge the denial of CAT relief, and
therefore, this claim is not preserved for review. See Edwards
v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999);
Canady v. Crestar Mortgage Corp., 109 F.3d 969, 973-74 (4th Cir.
1997).
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511 n.8 (4th Cir. 2007) (citing Haoua v. Gonzales, 472 F.3d 227,
230 (4th Cir. 2007)). Accordingly, Athe IJ=s or the [Board=s]
factual findings are >conclusive unless the evidence before the
[Board] was such that any reasonable adjudicator would have been
compelled to conclude to the contrary.=@ Id. (quoting Haoua, 472
F.3d at 231).
B.
Refugees may be granted asylum by the United States
Attorney General. 8 U.S.C. ' 1158(b). Applicants for asylum
have the burden of establishing either past persecution or a
well-founded fear of future persecution based upon the protected
grounds of race, religion, nationality, membership in a
particular social group, or political opinion. See Elias-
Zacarias, 502 U.S. 478, 481 (1992); Ngarurih v. Ashcroft, 371
F.3d 182, 187 (4th Cir. 2004); 8 U.S.C. ' 1101(a)(42)(A);
8 C.F.R. ' 1208.13(b). The Awell-founded fear@ standard is
comprised of both an objective and subjective element. The
objective component requires an applicant to show specific,
concrete facts that would lead a reasonable person in like
circumstances to fear persecution. Gandziami-Mickhou v.
Gonzales, 445 F.3d 351, 353 (4th Cir. 2006). The subjective
component, on the other hand, requires an applicant to submit
credible testimony demonstrating a genuine fear of persecution
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with some basis in reality and validated with specific facts,
not merely an irrational fear of persecution. Li v. Gonzales,
405 F.3d 171, 176 (4th Cir. 2005).
In addition, in order to qualify for asylum, an applicant
must establish a nexus between the feared persecution and the
protected ground. See Elias-Zacarias, 502 U.S. at 482-83;
8 U.S.C. ' 1101(a)(42)(A). In order to satisfy this nexus
element, Aan applicant must tie the persecution to a protected
cause . . . [and] show the persecutor had a protected
basis . . . in mind in undertaking the persecution.@ Saldarriaga
v. Gonzales, 402 F.3d 461, 468 (4th Cir. 2005) (quoting Rivera-
Moreno v. INS, 213 F.3d 481, 486 (9th Cir. 2000)). Here,
Petitioner does not allege persecution on the grounds of race,
religion, nationality, or membership in a particular social
group. Instead, she alleges a fear of future persecution based
upon political opinion. With respect to a petitioner=s fear of
persecution based upon political opinion, the political opinion
may be one actually held by the petitioner or one that is
imputed to her by persecutors. See 8 U.S.C. ' 1101(a)(42)(A);
Abdel-Rahman v. Gonzales, 493 F.3d 444, 450-51 (4th Cir. 2007).
In order to succeed on an asylum claim based upon an imputed
political opinion, a petitioner bears the burden of establishing
Athat [her] persecutors actually imputed a political opinion to
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[her].@ Abdel-Rahman, 493 F.3d at 450-51 (emphasis
added)(quoting Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.
1997)).
III.
A.
After hearing oral arguments and reviewing the
administrative record, the IJ=s decision, and the Board=s order,
we conclude that the record does not compel the reversal of the
finding that Petitioner is not eligible for asylum. Substantial
evidence supports the determination that Petitioner failed to
establish a nexus between her fear of future persecution and the
political opinion she alleges will be imputed to her.
In this regard, while Petitioner may have demonstrated
through credible testimony 2 that she holds a genuine fear of
persecution, she failed to establish a nexus between her feared
persecution and a protected ground, that is, that she would be
persecuted Aon account of@ a political opinion actually imputed
to her. 8 U.S.C. ' 1101(a)(42)(A); see Elias-Zacarias, 502 U.S.
at 482-83; Abdel-Rahman, 493 F.3d at 450-51. Here, the IJ
2
Pursuant to the REAL ID Act of 2005, because no adverse
credibility determination was explicitly made by the IJ,
Petitioner enjoys a rebuttable presumption of credibility on
appeal. 8 U.S.C. ' 1158(b)(1)(B)(iii).
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reasonably concluded that following the death of Njang, the
government=s reasons for questioning Petitioner about Njang=s
documents were Abut incidental or tangentially related to@ Njang=s
political activity with the SCNC. (J.A. 363-64).
Indeed, substantial evidence in the record supports the
conclusion that although Petitioner may have been questioned
about the location of Njang=s documents on one occasion, the
government did not actually impute Njang=s political opinions to
Petitioner. Petitioner was never a member of the SCNC, nor was
she even aware of the political viewpoints or activities
advocated by the group or Njang. At all relevant times,
Petitioner was illiterate and served Njang only in a
housekeeping role. In addition, Petitioner was only questioned
by the police on one occasion, despite the fact that she worked
for Njang for a period of fifteen yearsCCand at no point did the
police question her about the contents of Njang=s documents, only
their location.
Finally, pursuant to the REAL ID Act of 2005, A[w]here the
immigration judge determines that the applicant should provide
evidence which corroborates otherwise credible testimony, such
evidence must be provided unless the applicant demonstrates that
the applicant does not have the evidence and cannot reasonably
obtain the evidence.@ 8 U.S.C. ' 1229a(c)(4)(B). Here, the IJ
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concluded that certain evidence not produced at the hearing,
including a copy of the purported arrest warrant facing
Petitioner, was nonetheless reasonably available corroborative
evidence. In denying Petitioner=s application for asylum, the
Board relied upon the IJ=s finding that this corroborative
evidence was reasonably available, despite Petitioner=s
rebuttable presumption of credibility. In addition, the REAL ID
Act requires that A[n]o court shall reverse a determination made
by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that a
reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.@ 8 U.S.C.
' 1252(b)(4)(D). In this regard, Petitioner has not accounted
for her failure to produce this corroborative evidence, and we
do not find that the record compels the conclusion that such
evidence is unavailable.
Accordingly, after undertaking an Aextremely deferential@
review of the denial of Petitioner=s application for asylum, we
conclude that the determination made by the IJ and the Board are
Asupported by reasonable, substantial, and probative evidence on
the record considered as a whole,@ and the record does not compel
reversal thereof. Elias-Zacarias, 502 U.S. at 481. We
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therefore deny the petition for review with regard to
Petitioner=s asylum claim.
B.
With regard to Petitioner=s claim for withholding of
removal, because Petitioner does not qualify for asylum, she is
necessarily ineligible for withholding of removal. See
Ngarurih, 371 F.3d at 187 n.7; Camara v. Ashcroft, 378 F.3d 361,
367 (4th Cir. 2004) (ABecause the burden of proof for withholding
of removal is higher than for asylumCCeven though the facts that
must be proved are the sameCCan applicant who is ineligible for
asylum is necessarily ineligible for withholding of removal[.]@).
Therefore, we also deny the petition for review with regard to
Petitioner=s withholding of removal claim.
IV.
For the foregoing reasons, the petition for review is
DENIED.
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