Mbeng v. Gonzales ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 16, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-60226
))))))))))))))))))))))))))
BENEDICTA MBENG,
Petitioner,
versus
ALBERTO R. GONZALES,
UNITED STATES ATTORNEY GENERAL,
Respondent.
Petition for Review from the
Board of Immigration Appeals
No. A95 905 995
Before JOLLY, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Benedicta Mbeng petitions for review of an order of the Board
of Immigration Appeals (“BIA”) affirming the Immigration Judge’s
(“IJ”) decision to deny her application for asylum, withholding of
removal, and relief under the Convention Against Torture.1 Because
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
1
The United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10,
1984, 1465 U.N.T.S. 85 [hereinafter “Convention Against
Torture”]. See § 2242 of the Foreign Affairs Reform and
substantial evidence supports the IJ’s decision, we DENY Mbeng’s
petition for review.
I. BACKGROUND
Petitioner Benedicta Mbeng is a forty-nine year-old, native and
citizen of Cameroon, who entered the United States on June 6, 2001,
as a non-immigrant visitor with authorization to remain until
December 5, 2001. On August 15, 2002, the former Immigration and
Naturalization Service (“INS”) issued a Notice to Appear, charging
Petitioner with removability pursuant to section 237(a)(1)(b) of the
Immigration and Nationality Act (“INA”).2 Through written pleadings
and at a hearing, Petitioner conceded that she was removable as
charged, but requested asylum under section 208,3 withholding of
removal pursuant to section 241(b)(3)(A),4 and protection under the
Convention Against Torture.
Restructuring Act of 1998, Pub. L. No. 105-277, codified at 28
U.S.C. § 1231 (1998).
2
Section 237(a)(1)(b) provides that “[a]ny alien who is
present in the United States in violation of this chapter or any
other law of the United States, or whose nonimmigrant visa (or
other documentation authorizing admission into the United States
as a nonimmigrant) has been revoked under section 1201(i) of this
title, is deportable.” 8 U.S.C. § 1227 (a)(1)(B).
3
Section 208 of the INA discusses asylum generally and is
codified at 8 U.S.C. § 1158.
4
Section 241(b)(3)(A)provides that “the Attorney General
may not remove an alien to a country if the Attorney General
decides that the alien's life or freedom would be threatened in
that country because of the alien's race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(A).
2
The Petitioner’s applications for asylum, withholding of
removal, and protection under the Convention Against Torture are all
based on her memberships in the Social Democratic Front (“SDF”) and
the Southern Cameroon’s National Council (“SCNC”). The SDF is the
leading opposition party to the Cameroon People’s Democratic
Movement. The party is committed to ushering democracy, human
rights, and social justice into Cameroon. Petitioner joined the SDF
in 1991 and was elected ward treasurer in 1998. Petitioner’s
sister, Ophelia, served as legal advisor in her ward. Petitioner’s
husband, who still lives in Cameroon, was elected treasurer of his
ward in 1992 and retains that office to this day. Petitioner’s
brother-in-law, who also resides in Cameroon, is the legal advisor
to John Fru Ndi, SDF’s national chairman.
The SCNC mobilizes opposition to the current political
leadership in Cameroon in hopes of eliminating the occurrence of
human rights abuses and international law violations. Petitioner
joined the SCNC in 1998. At that time, she was a founder of that
ward and later elected treasurer.
During her removal proceedings, Petitioner testified that she
was subjected to persecution on at least four occasions. First, she
testified that on October 28, 1992, at approximately 3:00 A.M.,
while visiting her sister, Rose, police officers broke into Rose’s
home. Petitioner testified that the policemen were attempting to
find Ophelia’s husband. While attempting to locate Ophelia’s
husband, the officers threw Rose’s newborn on a bed and beat and
3
attempted to rape Rose. Petitioner testified that she, too, was
beaten after being asked the whereabouts of Ophelia’s husband.
The second incident occurred in 1996. Petitioner testified
that while attending a meeting of one of her organizations,5 troops
broke into the meeting-room, captured approximately thirty of the
ninety members present, and transported them to a police station.
There, the members were told to sit on the ground, in the sun, for
approximately eight hours because all of the jail cells were full.
Petitioner also testified that the detainees were not fed, given
anything to drink, or allowed to use the restroom. Additionally,
she stated that, at one point, officers soaked the detainees with
water from a nearby stream. Petitioner stated that she was released
after her sister Ophelia learned of the incident and drove to the
police station to negotiate with the officers.
Petitioner testified that her third encounter with officials
occurred in December 1999. SCNC members stormed a radio station and
declared the independence of Southern Cameroon, which sparked a
backlash on SCNC members by the government. The Petitioner’s
testimony indicates that, out of fear, she and her husband hid in
his former village for two months. When they returned to their
home, they found that one wall had been partially burned.
Petitioner stated that her neighbors told her that the arsonists
5
The record does not clarify whether the meeting was
comprised of SDF or SCNC members.
4
were Francophones.6
Finally, on March 16, 2001, after knocking, police entered
Petitioner’s home and asked for the whereabouts of Rose. The
officers also searched the house, took some personal and political
documents, slapped Petitioner, and presented her with summons which
required her to report to the police station on the following day.
In the United States, Petitioner continues to attend SCNC
meetings in Dallas, Texas. The Petitioner told the IJ that she
believes the Cameroonian government is aware that she is in the
United States and remains politically active because the government
has agents in this country. The IJ also noted that Petitioner
stated that if she returns to Cameroon she fears being arrested at
the airport, and then being persecuted or tortured. However, on
cross-examination, Petitioner conceded that her husband, brother-in-
law, and her children all reside in Cameroon and are having no
problems living there. Additionally, Petitioner admitted that seven
of the eight mayors in her city are SDF members.
At the hearing, Petitioner also presented the testimony of her
sister, Ophelia. The IJ noted that Ophelia’s testimony is largely
consistent with Petitioner’s, save a discrepancy concerning the
whereabouts of Ophelia’s husband on the morning of October 28, 1992.
The IJ credited all of Petitioner’s testimony but, held that
6
Petitioner is an Anglophone. In Cameroon, Francophones
maintain most of the political power and social status.
5
the facts alleged did not satisfy the standards of eligibility for
asylum, withholding of removal, or relief under the Convention
Against Torture. The BIA affirmed the IJ’s decision without issuing
an opinion.
II. STANDARD OF REVIEW
Although we ordinarily review decisions made by the BIA,
because the BIA affirmed without opinion, the IJ’s decision became
the final agency determination for purposes of this appeal. Soadjede
v. Ashcroft, 324 F.3d 830, 831-32 (5th Cir. 2003). “We use the
substantial evidence standard to review the IJ’s factual conclusion
that an alien is not eligible for asylum,” Zhao v. Gonzales, 404
F.3d 295, 306 (5th Cir. 2005), withholding of removal, Zamora-Morel
v. INS, 905 F.2d 833, 838 (5th Cir. 1990), and relief under the
Convention Against Torture, Ontunez-Tursios v. Ashcroft, 303 F.3d
341, 353 (5th Cir. 2002). Under this standard, we will not disturb
factual findings of the BIA “unless we find not only that the
evidence supports a contrary conclusion, but that the evidence
compels it.” Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994); see also
8 U.S.C. § 1252(b)(4)(B). “[I]t is the factfinder’s duty to make
determinations based on the credibility of the witnesses.” Zhao, 404
F.3d at 306 (quoting Chun v. INS, 40 F.3d at 78)(alteration in
original). Consequently, we give great deference to an IJ’s
findings concerning a witness’s credibility. Efe v. Ashcroft, 293
F.3d 899, 903 (5th Cir. 2002). “We cannot substitute our judgment
6
for that of the BIA or IJ with respect to the credibility of the
witnesses or ultimate factual findings based on credibility
determinations.” Chun, 40 F.3d at 78.
III. DISCUSSION
A. Substantial Evidence Supports the IJ’s Decision Denying
Petitioner’s Application for Asylum
Petitioner argues that the IJ failed to consider all of the
evidence in favor of granting relief and mischaracterized the
evidence weighing against granting the requested relief.
Pursuant to 8 U.S.C. § 1158(a), the Attorney General enjoys
authority to grant asylum to any alien who qualifies as a refugee
under Section 1101(a)(42)(A) of the INA.7 Therefore, the alien must
demonstrate that she has been persecuted or has a well-founded fear
of persecution on account of one of the factors listed in
1101(a)(42)(A).8 Although the INA does not define persecution, we
have described it as “[t]he infliction of suffering or harm, under
7
The statute defines a “refugee” as:
any person ... who is unable or unwilling to
return to, and is unable or unwilling to
avail himself or herself of the protection
of, that 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).
8
However, we emphasize that because the decision to grant
or deny asylum is within the IJ’s bailiwick, the fact that the
alien qualifies as a refugee under the statute does not
automatically entitle her to asylum. Zhao, 404 F.3d at 306.
7
government sanction, upon persons who differ in a way regarded as
offensive (e.g., race, religion, political opinion, etc.), in a
manner condemned by civilized governments.” Abdel-Masieh v. INS,
73 F.3d 579, 583 (5th Cir. 1996)(quoting Matter of Laipenieks, 18
I & N Dec. 433, 456-57 (BIA 1983)).
The IJ found that there was no evidence that rose to the level
of past persecution and that Petitioner’s credited testimony was
legally insufficient to establish a well-founded fear of future
persecution. The IJ did not question Petitioner’s veracity but
stated that she failed to satisfy the standards of eligibility for
the relief requested. The fact that the IJ did not doubt
Petitioner’s testimony is significant because we must accept as true
all the facts to which she testified. See Zhao, 404 F.3d at 306.
Hence, the question here is merely one of legal sufficiency of the
facts alleged. Id.
1. Petitioner Did Not Suffer Past Persecution
First, we must consider whether Petitioner suffered past
persecution. Her testimony focuses on four specific incidents. The
IJ, however, properly found that none of the incidents rise to
“persecution” based on her political opinion as delineated by this
Court.
While Petitioner was beaten in 1992, she was not the target of
the government’s inquiry. Petitioner merely happened to be at her
sister’s home while government officials came to look for her
8
brother-in-law. The second incident, Petitioner’s detainment for
eight hours, was not persecution based on her political beliefs
because Petitioner provided no testimony as to why she was detained,
no charges were brought against her, she was not convicted of any
crime, and she was ultimately released after eight hours. Moreover,
the fact that Petitioner was slapped and had some political and
personal documents confiscated by police when she was unable to tell
them the location of her sister was not persecution based on her
political beliefs, because the officers were searching for Rose, the
Petitioner’s sister, not the Petitioner. Finally, the fact that a
wall in Petitioner’s home was burned after she had been away for
over two months does not indicate past persecution, especially in
light of the fact that the Petitioner cannot present any meaningful
evidence as to who burned the wall or why it was ignited. Hence,
none of the incidents described by Petitioner compels us to reach
a contrary conclusion to the one made by the IJ.
2. Petitioner Failed to Establish a Well-Founded Fear of
Future Persecution
To establish a well-founded fear of future persecution, an
alien must demonstrate “a subjective fear of persecution, and that
fear must be objectively reasonable.” Eduard v. Ashcroft, 379 F.3d
182, 189 (5th Cir. 2004)(quoting Lopez-Gomez v. Ashcroft, 263 F.3d
442, 445 (5th Cir. 2001)). To meet this burden, an alien can either
satisfy the standard articulated in Section 208.13(b)(2) or
demonstrate that she would be singled out for persecution. See
9
Zhao, 404 F.3d at 307.
Section 208.13(b)(2) has two prongs. The alien need not
provide evidence that she would be singled out for persecution, if:
(A) [She] establishes that there is a pattern
or practice in ... her country ... of
persecution of a group of persons similarly
situated ... on account of race, religion,
nationality, membership in a particular social
group, or political opinion; and
(B) [She] establishes ... her own inclusion
in, and identification with, such group of
persons such that [her] fear of persecution
upon return is reasonable.
8 C.F.R. § 208.13(b)(2)(iii)(A)-(B).
Meeting the standard requiring an alien to demonstrate that she
would be singled out for persecution “does not require [the alien]
to demonstrate that [s]he will be persecuted on returning to the
[designated country].” Zhao, 404 F.3d at 307. Rather, it requires
her to show that there is a reasonable degree of certainty that her
return there would be intolerable. See Eduard, 379 F.3d at 189.
We apply the reasonableness inquiry to both the “singled out”
standard and the prongs of Section 208.13(b)(2). Zhao, 404 F.3d at
307.
To establish the objective reasonableness of a
well-founded fear of future persecution, the
alien must prove that (1) he possesses a
belief or characteristic a persecutor seeks to
overcome by means of punishment of some sort;
(2) the persecutor is already aware, or could
become aware, that the alien possesses this
belief or characteristic; (3) the persecutor
has the capability of punishing the alien;
and, (4) the persecutor has the inclination to
punish the alien.
10
Id. (quoting Eduard, 379 F.3d at 191). Finally, the applicant need
not prove that the government was actually aware of her beliefs and
activities as long as the government could easily become aware of
such. Id. at 308.
There is substantial evidence to support the IJ’s finding that
Petitioner failed to establish a well-founded fear of future
persecution. In light of the four factors considered when assessing
reasonableness, Petitioner fails to demonstrate that the Cameroonian
government has the inclination to punish her based on her political
beliefs and activities. Hence, Petitioner’s allegation that there
was a pattern or practice of persecution and that she might be
singled out for persecution are both unreasonable. Both the SDF and
SCNC have hundreds of thousands of members who participate in
political activity without incident or persecution. Moreover, as
Petitioner testified, seven of the eight mayors in her city are SDF
members. Furthermore, the IJ noted, without referring to the two-
prong test, that Petitioner conceded that her husband and brother-
in-law both reside in Cameroon without any problems.9
B. Substantial Evidence Supports the IJ’s Denial of Mbeng’s
Application for Withholding of Removal
9
The record even reflects that Petitioner’s husband
successfully held a government job while involved with the SDF
and SCNC. As previously mentioned, Mbeng’s brother-in-law holds
a much more prominent role in SDF than the Petitioner.
11
Petitioner also argues that the IJ applied an incorrect legal
standard, and that the evidence compels a different finding of fact
with regard to her request for withholding of removal.10 In light
of our finding that substantial evidence supports the IJ’s decision
with regard to Petitioner’s application for asylum, we need not
address this issue. See Girma v. INS, 283 F.3d 664, 666-67 (5th
Cir. 2002)(“The level of proof required to satisfy the requirements
for withholding of deportation is more stringent than for asylum
purposes.”).11
C. Substantial Evidence Supports the IJ’s Denial of Mbeng’s
Application for Relief under the Convention Against
Torture
10
While a grant of asylum permits an alien to remain in this
country, a withholding of removal forbids the alien’s removal to
the persecuting country. See INA §§ 208 & 241(b)(3), codified at
8 U.S.C. §§ 1158, 1231(b)(3). Although a grant of asylum is
within the agency’s discretion, a restriction on removal is
granted to qualified aliens as a matter of right. See INS v.
Cardoza-Fonseca, 480 U.S. 421, 424 (1987). Additionally,
“[u]nlike asylum, withholding of removal does not require a
showing that the petitioner has a subjective fear of
persecution.” Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir.
2005)(citing Guevara Flores v. INS, 786 F.2d 1242, 1250 (5th Cir.
1986)). “[T]he alien need only demonstrate a ‘clear probability’
of persecution if returned to [her] home country.” Id. (citing
Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994)).
11
Because the IIRIRA changed the language of immigration
orders, orders of deportation and orders of exclusion are both
now referred to as “orders of removal.” See IIRIRA § 309(d)(2),
110 Stat. 3009 (1996) ( “[A]ny reference in law to an order of
removal shall be deemed to include a reference to an order of
exclusion and deportation or an order of deportation.”).
Therefore, we use the words “removal” and “deportation”
interchangeably.
12
Petitioner also argues that the evidence compels a different
finding of fact with regard to her request for relief pursuant to
the Convention Against Torture. She contends that if she returns
to Cameroon she fears being arrested at the airport and tortured not
only because of her past affiliation with the SDF and SCNC, but also
because of her continued participation in the organizations.
Claims based on the Convention Against Torture
differ from claims of asylum and withholding
of removal because alleged mistreatment need
not involve “one of the five categories of
race, religion, nationality, membership in a
particular social group or political opinion”
and because proof of torture, not simply
persecution, is required. To obtain relief,
an applicant must show that it is “more likely
than not” that he would be tortured if
returned to his home country.
Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005). (citations
omitted)(emphasis added).
The Federal Register defines torture as:
any act by which severe pain or suffering ...
is intentionally inflicted on a person ... for
any reason based on discrimination of any
kind, when such pain or suffering is inflicted
by or at the instigation of or with the
consent or acquiescence of a public official
or other person acting in an official
capacity.
8 C.F.R. § 208.18(a)(1).
To determine whether relief pursuant to the Convention Against
Torture is appropriate, the IJ should consider:
(i) Evidence of past torture inflicted upon
the applicant;
13
(ii) Evidence that the applicant could
relocate to a part of the country of removal
where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass
violations of human rights within the country
of removal, where applicable; and
(iv) Other relevant information regarding
conditions in the country of removal.
8 C.F.R. § 208.16(c)(3).
The IJ did not reach this issue because he concluded that
because Petitioner failed to meet the lower burden with regard to
her application for asylum, it followed that she would fail to
satisfy the higher burdens for withholding of removal and relief
pursuant to the Convention Against Torture. See Dika v. Ashcroft,
85 F. App’x 374, 375 (5th Cir. 2004)(“The burden of proof for
withholding of removal under the Immigration and Nationality Act and
under the Convention Against Torture is a higher standard than
asylum. Failure to satisfy the less demanding asylum standard is,
a fortiori, a failure to demonstrate eligibility for withholding of
removal.”). However, we will still analyze this claim separately
because Petitioner need only prove torture–not persecution based on
one of the five enumerated categories. See Zhang, 432 F.3d at 345.
The IJ’s decision is supported by substantial evidence. While
the 1992 beating might constitute past torture for purposes of the
Convention, Petitioner fails to demonstrate that it is more likely
than not that she will be tortured if she returns to Cameroon.
Moreover, the existence of this evidence alone does not compel us
to disturb the IJ’s factfinding. The long time span between the
14
incidents discussed at the hearing suggests that the government is
not likely to torture Petitioner. Moreover, as previously noted,
both the SDF and SCNC have a multitude of members, including
Petitioner’s own relatives, who participate in political activities
without incident or persecution. Hence, the IJ’s denial of Mbeng’s
application for relief pursuant to the Convention Against Torture
is supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the IJ’s decision to deny
Petitioner’s application for asylum, withholding of removal, and
relief under the Convention Against Torture proceedings. Thus we
DENY Mbeng’s petition for review.
15