Akofa Christine Doumegno v. Loretta E. Lynch , 640 F. App'x 571 ( 2016 )

United States Court of Appeals
For the Eighth Circuit
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No. 15-1274
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Akofa Christine Doumegno
lllllllllllllllllllllPetitioner
v.
Loretta E. Lynch, Attorney General of the United States
lllllllllllllllllllllRespondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: November 17, 2015
Filed: February 24, 2016
[Unpublished]
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Before SMITH, BYE, and BENTON, Circuit Judges.
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PER CURIAM.
Akofa Christine Doumegno petitions for review of an order of the Board of
Immigration Appeals ("BIA"), which affirmed the denial of Doumegno's application
for asylum, cancellation of removal, and relief under the Convention Against Torture
("CAT"). Doumegno argues the Immigration Judge ("IJ") and the BIA applied
incorrect legal standards and improperly weighed the evidence. We deny
Doumegno's petition.
I
Doumegno, who maintains she is a native and citizen of Togo, left Togo
because of violence and temporarily settled in Benin. With the help of a friend,
Doumegno obtained a Beninese birth certificate and passport and successfully applied
for an F-1 Student Visa to the United States. Doumegno was admitted to the United
States in 2007 using the Beninese passport with the name of Merime Laurell Goudou.
Doumegno thereafter filed a timely application for asylum and listed her name as
Akofa Christine Doumegno and identified her nationality and citizenship as Togolese.
As proof of her Togolese citizenship, Doumegno submitted her Togolese national
identity card, a membership card from a Togolese social group, her farther's Togolese
national identity card, and a letter of support from where she stayed in Benin.
Doumegno also disclosed her use of Merime Laurell Goudou as an alias, and
submitted copies of the Goudou documents.
The asylum office, because of concerns with whether Doumegno suffered
persecution, referred the matter to the immigration court. The IJ conducted an
individual hearing, during which the government asked for additional time to verify
Doumegno's identity and nationality. The IJ granted the government's motion for
continuance. At the second hearing, the government announced it had failed to
investigate Doumegno's identity and nationality. The IJ then determined the burden
to establish her identity and nationality rested on Doumegno and Doumegno needed
to rebut the presumption that her Benin passport properly identified her as Goudou.
The IJ continued the matter so Doumegno could seek verifying information on her
identity and nationality, but the government declined to provide Doumegno with the
original copies of her identity documents. At the next hearing, Doumegno presented
documentary evidence she obtained from Merime Laurell Goudou, a woman living
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in Benin. Doumegno did not present further identity evidence from Benin because
the government did not respond to her requests. The IJ concluded (1) Doumegno's
claim that her name is Doumegno and she is from Togo lacked credibility, and (2)
Doumegno failed to meet her burden to prove her identity is different than that in the
passport she used to enter the country. The IJ then sua sponte found Doumegno
removable because Doumegno committed fraud by claiming she was Doumegno from
Togo when really she was Goudou from Benin.
Doumegno timely appealed to the BIA. The BIA held the IJ committed "no
clear error" by "finding that the respondent did not satisfy her burden establishing that
her true identity is Akofa Christine Doumegno and that she is a citizen and native of
Togo." The BIA dismissed the appeal. Doumegno now petitions for review.
II
Doumegno raises several issues with the administrative proceedings, all of
which relate to the single question of whether Doumegno adequately proved her
nationality and identity. Doumegno asks this Court to remand to the BIA for further
proceedings on her claims of asylum, withholding of removal, and CAT relief.
Because the BIA's decision is the final decision of an agency, it is the subject
of our review. Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir. 2005). "In an appeal
from the BIA, we review the BIA's fact-findings for substantial evidence, and we
review its legal determinations, as well as any constitutional challenges, de novo."
Banat v. Holder, 557 F.3d 886, 889 (8th Cir. 2009). Doumegno argues the BIA's
order is unreviewable on appeal because the BIA failed to explain whether it found
Doumegno and her evidence credible. However, the BIA adopted the reasoning of
the IJ in this matter, which the BIA is allowed to do. Instead of making the case
unreviewable, we review the IJ's decision. Banat, 557 F.3d at 889-90.
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Regarding establishment of identity and nationality, Doumegno asserts an error
of law because the BIA failed to properly articulate Doumegno's burden of proof and
the IJ fashioned an evidentiary presumption which had never before been articulated.
However, it is well-established an asylum seeker bears the burden of proving identity
and nationality. An asylum-seeker must "confront the basic burden of establishing
her identity and nationality" when they "are legitimately in question." Diallo v.
Mukasey, 508 F.3d 451, 454 (8th Cir. 2007). An asylum-seeker's "proof of her
identity and nationality are fundamental, and when called into question, [the
petitioner] must present adequate explanation or risk a lack of credibility finding."
Id. at 455 n.3; see also In Re O-D-, 21 I. & N. Dec. 1079, 1081 (BIA 1998) (holding
that where identity is disputed and "[u]nderlying the entire record is the respondent's
fundamental claim that he is a citizen and national of [a certain country] and seeks
refuge therefrom," a petitioner has "the burden of establishing identity, nationality,
and citizenship"). Neither the BIA nor the IJ committed legal error in stating or
applying the burden of proof.
Doumegno next argues the IJ erred in assessing the credibility of her testimony
and documentary evidence. "[B]ecause the immigration judge is in the best position
to evaluate a[] [petitioner]'s testimony, his or her credibility determinations are to be
given much weight," and we defer to the IJ's credibility finding "where the finding
is supported by a specific, cogent reason for disbelief." Perinpanathan v. INS, 310
F.3d 594, 597 (8th Cir. 2002) (citations omitted). The IJ provided a reasoned
explanation for its credibility assessment of Doumegno and the evidence presented.
For example, even though the IJ misunderstood the issue-date of one of the identity
cards, the IJ found Doumegno's account of how her friend obtained the card
implausible and accorded the card little weight. Additionally, the IJ was troubled that
the Togolese nationality identity card was not certified in accordance with Togolese
regulations, and the IJ "found suspect" Doumegno's friend was able to retrieve the
documents from Togo without Doumegno being present. Ultimately, the IJ
determined it could not credit Doumegno's claim that she was born in Togo and is a
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citizen of Togo because "the Togolese documents . . . presented in this case[] were
obtained in such a suspect and unsubstantiated manner." Although the evidence
"do[es] not necessarily compel an adverse credibility determination," we were not
present to evaluate the credibility of the witnesses, and "'great weight' must be given
to the IJ's determination." Diallo, 508 F.3d at 455. Accordingly, we uphold the
adverse credibility determination.
Doumegno also asserts she proved, by a preponderance of the evidence, her
identity and nationality. However, we evaluate petitions for review under the
substantial evidence standard, not a preponderance of the evidence standard. Nadeem
v. Holder, 599 F.3d 869, 872 (8th Cir. 2010). In order to reverse under the substantial
evidence standard, there must be evidence "so compelling that no reasonable fact-
finder would fail to find for" the petitioner. Id. The IJ, after weighing the credibility
of Doumegno's testimony and the submitted documents, gave little weight to the
"questionable" Togolese documents, and gave much weight to the Beninese passport,
which everyone agrees was actually issued by the government of Benin. Contrary to
Doumegno's argument, the IJ and BIA did not treat the Beninese passport as per se
conclusive evidence of Doumegno's identity and nationality. Instead, the IJ weighed
the passport against the Togolese documents, and also gave little weight to the
documents provided by Goudou. We can appreciate Doumegno's frustration with
how the IJ weighed the evidence; however, "we are not at liberty to reweigh the
evidence." Osonowo v. Mukasey, 521 F.3d 922, 926 (8th Cir. 2008). Accordingly,
Doumegno is not entitled to relief on this ground.
In total, substantial evidence supports the IJ's determination of Doumegno's
credibility, identity, and nationality. Because Doumegno failed to prove her identity
and nationality, her "asylum and withholding claims . . . fail since they rest[] on h[er]
discredited testimony about h[er] identity." Ali v. Holder, 686 F.3d 534, 538 (8th Cir.
2012). Doumegno's claim for relief under CAT fails for the same reason. Although
an outcome "on asylum and withholding of removal are not determinative of the CAT
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claim," separate analysis for CAT protection is only required if the evidence of torture
is unrelated to the asserted grounds for asylum and withholding of removal.
Khrystotodorov v. Mukasey, 551 F.3d 775, 784 (8th Cir. 2008). Because
Doumegno's claims all rest on her identity as Doumegno and nationality as Togolese,
her CAT claim fails for all of the reasons explained above.
III
Accordingly, we deny Doumegno's petition for review.
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