Carine Adongafac v. Merrick B. Garland ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 21-1800
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Carine Fuatabreh Adongafac
lllllllllllllllllllllPetitioner
v.
Merrick B. Garland, 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: June 15, 2022
Filed: November 21, 2022
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Before LOKEN and KELLY, Circuit Judges, and MENENDEZ, District Judge.*
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LOKEN, Circuit Judge.
The Department of Homeland Security commenced removal proceedings after
Carine Fautabreh Adongafac, a citizen of Cameroon, entered the United States on
November 30, 2019, in Laredo, Texas. She conceded removability and applied for
*
The Honorable Katherine M. Menendez, United States District Judge for the
District of Minnesota, sitting by designation.
asylum, withholding of removal, and relief under the Convention Against Torture
(CAT). Following a hearing, the Immigration Judge (IJ) denied her application,
finding that she failed to establish past persecution or a well-founded fear of future
persecution. The Board of Immigration Appeals (BIA) dismissed Ms. Adongafac’s
appeal in a four-page opinion. She now petitions for judicial review of the final order
of removal. The BIA’s decision is the final agency action we review; we review the
IJ’s decision “to the extent that the BIA adopted the findings or reasoning of the IJ.”
Barrera Arreguin v. Garland, 29 F.4th 1010, 1015 (8th Cir. 2022) (quotation omitted).
Ms. Adongafac raises three issues on appeal. She first argues the BIA
improperly applied Fifth Circuit instead of Eighth Circuit law in denying her
application. Ms. Adongafac was in Louisiana during her asylum hearing, conducted
by video conference, but the case was docketed in Minnesota. Venue is proper
“where the administrative hearings were completed.” Llapa-Sinchi v. Mukasey, 520
F.3d 897, 901 (8th Cir. 2008) (citation omitted); see Matter of R-C-R-, 28 I. & N.
Dec. 74, 74 n.1 (B.I.A. 2020). Thus, Minnesota appears to be the proper venue. But
Ms. Adongafac’s appeal to the BIA did not argue the IJ erred in applying Fifth Circuit
law, so failure to exhaust deprives us of jurisdiction to consider that issue. See
Molina v. Whitaker, 910 F.3d 1056, 1061 (8th Cir. 2018), citing 8 U.S.C. §
1252(d)(1). Moreover, Ms. Adongafac fails to identify how Eighth Circuit law differs
from the Fifth Circuit authorities cited by the IJ and the BIA, so any error by the BIA
is harmless. The government’s brief to our court relied on Eighth Circuit precedents,
as will we.
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Ms. Adongafac’s other two asylum issues require careful review.1 She argues
(i) the BIA erred in upholding the IJ’s ruling that she failed to provide reasonably
obtainable evidence corroborating her otherwise credible testimony, see 8 U.S.C.
§ 1158(b)(1)(B)(ii); 8 C.F.R. § 1208.13(a); and (ii) the IJ and the BIA erred in finding
that she did not demonstrate a well-founded fear of future persecution based on a
pattern and practice of persecuting similar persons.
To be eligible for asylum, Ms. Adongafac must prove that she is a “refugee,”
8 U.S.C. § 1158(b)(1)(A), meaning that she is unwilling or unable to return to
Cameroon “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). Ms. Adongafac claims that she was subjected to
past persecution in Cameroon and has a well-founded fear of future persecution
because she is an Anglophone -- that is, an English speaker -- and because the
Cameroon government and military impute to her a political opinion, support of those
engaging in “Separatist” activities. We review “the ultimate question of past
persecution or well-founded fear of future persecution, as well as the findings
underlying that determination . . . under the substantial evidence standard that applies
to agency findings of fact.” Barrera Arreguin, 29 F.4th 1010 at 1015 (quotation
omitted). To obtain reversal of the BIA’s determinations, Ms. Adongafac “must show
that the evidence [s]he presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” I.N.S. v. Elias-Zacarias, 502 U.S.
1Ms. Adongafac does not separately challenge the denial of withholding of
removal and relief under the CAT. The asylum officer who conducted her credible
fear interview found that she was not eligible for asylum because she transited
through at least one other country before entering the United States and did not apply
for protection from persecution or torture. See 8 C.F.R. § 1208.13(c)(4)(i). The IJ
questioned Ms. Adongafac about her extended travels before entering the United
States but did not address this issue.
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478, 483-84 (1992); see 8 U.S.C. § 1252(b)(4)(B). Applying this highly deferential
standard, we deny the petition for review.
I. The Hearing Evidence
Ms. Adongafac was the only person who testified at the February 24, 2020
asylum hearing. She identified herself as an Anglophone who lived in the village of
Muyuka in the Southwest Region of Cameroon. According to the November 7, 2019
online edition of The Economist (part of Exhibit 4 in the Certified Administrative
Record),2 after the First World War, Britain and France took over different parts of
the German colony of Cameroon. Upon independence in 1961, the larger French
territory joined the southern part of the British colony to form modern Cameroon. In
2016, The Economist reported, Anglophone Separatists in the smaller Northwest and
Southwest Regions, claiming decades of “marginalisation,” declared independence
from Cameroon. The French-dominated government hit back, beginning a still-
ongoing violent conflict between the Separatists and the Cameroonian military, a
conflict referred to as the “Anglophone crisis.” Hundreds of thousands of people
have been forced to leave their homes. Tens of thousands have fled to Nigeria, “but
most are in the bush.” The Economist reported that both sides “share some of the
blame” for the violence and chaos.
Ms. Adongafac testified that she operated a restaurant in Muyuka. On April
27, 2019, she heard gunshots outside in the street. One customer went out to
investigate. He was shot and killed. Cameroonian military officers entered the
restaurant, demanding to know if anyone knew the man who had been shot. The
officers ordered everyone on the ground. They pushed Ms. Adongafac over and
2
“A War of Words,” The Economist (Nov. 7, 2019), found at
https://www.economist.com/middle-east-and-africa/2019/11/07/english-speaking-
villages-are-burning-in-cameroon.
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kicked her, then asked if she knew the man or the location of “his friends,” claiming
they were Separatist fighters. Ms. Adongafac said she knew nothing about him. The
officers ordered the eight people in the restaurant to walk to a military truck parked
outside. Ms. Adongafac was pushed onto the truck and taken to “public security in
Mallorca,” where the military took her name and address and threw her in a cell.
Ms. Adongafac related that she was held in a cell for ten days with some twenty
other people. They were forced to sleep on the floor, given only a banana to eat every
day, and had to use a bucket in the corner as a bathroom. Officers interrogated Ms.
Adongafac ten times over five days about the man who was shot outside her
restaurant. Though never politically active, she stated they thought she was a
Separatist because she is an Anglophone and Separatists ate at her restaurant. They
kicked her, whipped her with belts and batons, pushed her head into the bathroom
bucket, and called her a separatist and “Anglo fool.” On the tenth night of detention,
one officer forced her to undress and raped her at gunpoint, causing her to bleed and
eventually pass out. She testified she was two months pregnant and believed the
bleeding was from having a miscarriage.
Ms. Adongafac woke up in the local district hospital where she spent five days
“guarded by a village man.” On the fifth day, her Uncle came to the hospital and told
her to come with him, telling her not to worry about the guard, who was not at his
post. She was taken to the home of her friend, who cared for her for nine days. Her
Uncle then brought her 2018 passport, an ID, money, and a Turkish airline ticket to
Ecuador. He told her the military had come to her house looking for her and beaten
her husband and daughter; she needed to flee the country. She went to the airport in
Douala with her Uncle and boarded the plane to Ecuador with the help of an
immigration official. Her direct testimony concluded:
[Counsel]: What do you believe would happen if you returned to
Cameroon?
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Ms. Adongafac [to counsel]: I will be rearrested, detained,
tortured, raped again. I’ll probably be killed because official[s] accused
me of feeding the Separatist fighters and that will happen because I am
an Anglophone. And I had escaped from prison. I escaped from the
hospital. I was not released legally.
In response to questions from the IJ, Ms. Adongafac testified that she escaped
from the hospital without her medical records and had no medical treatment after
leaving the hospital. No one requested her records “because it’s a government
hospital.” She has no photos of her injuries. Her Uncle arranged her travel to
Ecuador. “It was his plan. He just surprise[d] me with it.” On arriving, her plan was
to hide in Ecuador for some time, “but the situation there was not favorable.” She
further testified on cross examination that she did not attempt to contact her husband
or her daughter before leaving Cameroon. She told her Uncle she needed to see them
before leaving; he said he did not know where they were.
Ms. Adongafac told the credible fear interviewer that, from Ecuador, her Uncle
arranged for her to travel through Columbia, Panama, Costa Rica, Nicaragua,
Honduras, Guatemala, and Mexico to reach the United States. At the hearing, she
testified that her passport and a cell phone that she acquired in Mexico were stolen
in Mexico, but she did not report the incident. She did not attempt to contact anyone
in her family with that cell phone and has not spoken to any family in Cameroon since
leaving. She knows her daughter is with her older sister in Cameroon but does not
know where her husband is.
Following the hearing, Ms. Adongafac submitted several documents to support
her testimony including: her declaration dated July 7, 2020; declarations of her Uncle
dated July 17, 2020, her friend dated July 20, 2020, and two of her sisters, one who
remains in Cameroon and the other who lives in Maryland, dated July 7 and 8, 2020;
mental health notes; declarations from two mental health professionals addressing
Ms. Adongafac’s claims of mental health issues while in detention in the United
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States; and what Ms. Adongafac labels “Country Conditions Evidence” -- four news
articles and two Human Rights Watch reports describing violence and atrocities
committed during Cameroon’s Anglophone crisis.
II. The Decisions under Review
Based on “the totality of the circumstances presented,” the IJ “reluctantly”
found that Ms. Adongafac “testified credibly with respect to the matters before it.”
However, while her testimony was consistent with prior statements, including the
credible fear interview, it was “so consistent, regularly using . . . indicia of having
been memorized . . . that it does not appear to this Court that many of the details
provided, to the limited extent that there were details provided, arose from personal
experiences of [Ms. Adongafac].” When the IJ or DHS counsel “attempted to elicit
any detail outside the parameters of the limited detail provided . . . [Ms. Adongafac]
stumbled, faltered, and essentially was unable to provide any other detail.”
Accordingly, the IJ made a positive credibility finding but found that her credible
testimony “is weak” and therefore the testimony alone was “not sufficiently detailed”
to support Ms. Adongafac’s burden of proof and “require[d] corroboration.”
The IJ expressly considered all of the evidence and testimony “regardless of
whether specifically mentioned.” The IJ found that Ms. Adongafac “failed to submit
corroborative evidence in the form of any medical records or any objective evidence
with respect to the physical injuries . . . that she stated were inflicted upon her
because she was an Anglophone and [her] imputed support of the Separatists.” She
did submit numerous statements from family members and friends in support of her
application for relief. But those statements “lack sufficient detail [and] most if not
the majority of the information within those statements was not based upon personal
knowledge of the facts stated. . . . [N]one of the individuals who provided statements
provide any specific details concerning their observations of [Ms. Adongafac],
including her Uncle and her friend.” The IJ observed that no efforts were made to
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obtain medical records and that her injuries required no further treatment after she left
the hospital.
Because she did not sufficiently corroborate her injuries, the IJ found that Ms.
Adongafac had not met her burden of demonstrating past persecution. The IJ further
found that Ms. Adongafac had likewise failed to establish a well-founded fear of
future persecution. She “has not presented sufficient evidence to demonstrate that
any government official in Cameroon, including the military, has searched for her, or
continues to search for her, thus making her fear of return there objectively
reasonable.” To the contrary, the IJ explained, Ms. Adongafac testified that when
under guard at the hospital, the military “looked the other way when she,
accompanied by her Uncle, simply walked out of the hospital into a waiting car and
traveled to a nearby home of a friend where she stayed for several days before being
able to leave without being impeded by any member of the military using her
identification and a passport, and a ticket in her name.” Nor did Ms. Adongafac
establish “there is a pattern or practice of persecution of a group of persons similarly
situated to her on account of a protected ground . . . such that her fear of persecution
upon return is reasonable.”
In dismissing Ms. Adongafac’s administrative appeal, the BIA discussed in
detail her claims of adequate corroborating evidence and concluded:
Based on the foregoing, [Ms. Adongafac] did not adequately corroborate
her claim with reasonably available evidence, and the portion of her
asylum claim based on her imputed political opinion fails on this basis.
We also affirm the [IJ’s] determination that [Ms. Adongafac] did not
demonstrate a pattern or practice of persecution against Anglophone
separatists because [she] did not establish that her fear of persecution is
reasonable. These are dispositive issues, and we need not address [Ms.
Adongafac’s] other arguments on appeal relating to her asylum claim.
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III. Discussion
A. An Evidentiary Issue. Ms. Adongafac first contends that the BIA
“committed legal error in affirming the [IJ’s] denial of relief without considering all
corroborative evidence,” namely, a declaration from her sister in Maryland that was
in the administrative record, and “the extensive articles and reports that Ms.
Adongafac submitted regarding the country conditions in Cameroon.” An alien
seeking asylum has a due process right to a fair hearing in removal proceedings and
“must be given the opportunity to fairly present evidence, offer arguments, and
develop the record.” Tun v. Gonzalez, 485 F.3d 1014, 1025 (8th Cir. 2007); see 8
U.S.C. § 1229a(b)(4)(B). But on this administrative record, we conclude the
contention is without merit.
Regarding the sister’s declaration, the IJ questioned Ms. Adongafac’s
testimony that she had no plan to come to the United States when she left Cameroon,
noting she made an inconsistent statement to the asylum officer. But the IJ could not
further examine the issue because “the Court does not have an affidavit from that
sister.” The BIA noted on appeal that the sister’s declaration was in the record but
“deem[ed] this mistake harmless error.” We note that the IJ may not even have made
a “mistake” because there is some difference between a declaration sworn “under
penalty of perjury” and an affidavit subscribed and sworn to in the presence of a
notary public. But in any event, the sister’s declaration did not address Ms.
Adongafac’s inconsistent statements that concerned the IJ, and the declaration falls
squarely within what the IJ referred to as “numerous statements . . . from family
members [that] lack sufficient detail [and were] not based upon personal knowledge
of the facts stated.” The IJ is entitled to a “presumption of regularity” and need not
“mention every piece of evidence that it considered.” Doe v. Holder, 651 F.3d 824,
831 (8th Cir. 2011). Here, the BIA addressed this issue. It did not abuse its
discretion “by wholly failing to consider evidence [Ms. Adongafac] presented.”
Kanagu v. Holder, 781 F.3d 912, 918 (8th Cir. 2015).
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Regarding Ms. Adongafac’s “country conditions” evidence, she did not submit
United States Department of State country reports that we have found significant in
asylum cases such as Tegegn v. Holder, 702 F.3d 1142, 1146-47 (8th Cir. 2013).
Rather, she submitted articles by journalists and Human Rights Watch reports
describing the circumstances facing civilian victims on both sides of the Anglophone
crisis. The IJ expressly stated she considered all the record evidence. The BIA did
not err in concluding that this type of country conditions evidence did not establish
the objective reasonableness of Ms. Adongafac’s subjective fear of future persecution
on account of her imputed political opinion or her Anglophone identity. See Njong
v. Whitaker, 911 F.3d 919, 924 (8th Cir. 2018). Nor did these unofficial publications
establish a “pattern or practice of persecution,” which must be “systematic, pervasive,
or organized.” He v. Garland, 24 F.4th 1220, 1226 (8th Cir. 2022).
B. The Merits. Ms. Adongafac next argues the BIA erred in concluding that
she failed to adequately corroborate her asylum claim. She argues she adequately
established the lack of available medical records by credibly testifying that “nobody
could have obtained the [medical] records from the hospital from which she escaped.”
When the IJ “determines that the applicant should provide evidence that
corroborates otherwise credible testimony, such evidence must be provided unless the
applicant does not have the evidence and cannot reasonably obtain the evidence.” 8
U.S.C. § 1158(b)(1)(B)(ii). The IJ may require supporting evidence “for material
facts that are central to [an asylum] claim and are easily subject to verification.”
Matter of L-A-C-, 26 I. & N. Dec. 516, 519 (B.I.A. 2015). If supporting evidence is
not produced, the petitioner must have an opportunity to explain its unavailability,
ensuring the explanation is in the record. Id. at 521-22; see Barrera Arreguin, 29
F.4th at 1016. “[T]he REAL ID Act place[s] the burden on the petitioner to
corroborate otherwise credible testimony.” Uzodinma v. Barr, 951 F.3d 960, 967 (8th
Cir. 2020), cert denied sub nom. Uzodinma v. Garland, 141 S. Ct. 2511 (2021). We
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may not reverse the BIA’s determination that corroborating evidence was available
“unless a reasonable trier of fact would be compelled to conclude that the evidence
is unavailable.” Omondi v. Holder, 674 F.3d 793, 800 (8th Cir. 2012) (quotation
omitted); accord Ntangsi v. Holder, 554 F.3d 1142, 1148 (8th Cir. 2009); Eta-Ndu v.
Gonzales, 411 F.3d 977, 985-86 (8th Cir. 2005).
Here, Ms. Adongafac’s asylum claim was based in large part on the alleged
detention, beatings, and rape that Cameroonian military officers inflicted upon her
following the shooting incident at her restaurant. Thus, when the IJ required
corroborating evidence, the absence of medical records supporting hospitalization and
treatment of those injuries was an important issue. The IJ found Ms. Adongafac’s
explanation for not providing medical records and other evidence corroborating her
injuries “not persuasive”:
The Court has tak[en] into consideration [Ms. Adongafac’s explanation].
However, the Court notes that Respondent [lacked] any information of
any assistance to the Court concerning how multiple people appear to
have been bribed by her Uncle to facilitate [her] exodus from the
hospital . . . and facilitate[d] and procure[d] the unlawful and illegal
conduct by Immigration officials and other individuals at the
international airport in Douala, [yet] no efforts have been made to obtain
any of those medical records . . . including by bribing someone at the
hospital or facility.
Ms. Adongafac argues the IJ erred in finding her explanation unreasonable.
We conclude that a reasonable trier of fact would not be compelled to agree. While
her claim that no one requested her records “because it’s a government hospital” is
plausible, in that many cases have observed that a petitioner should not be required
to provide corroboration “from the persecutor,”3 the record only shows that the
3
Gontcharova v. Ashcroft, 384 F.3d 873, 878 (7th Cir. 2004), quoting In re S-
M-J-, 21 I. & N. Dec. 722, 725 (B.I.A. 1997).
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facility was a “district hospital,” not necessarily controlled by the military, and that
Ms. Adongafac was able to walk away, allegedly because her Uncle had bribed a
“guard” to leave his post while she did so. This hardly establishes that medical
records of her injuries were not available at the hospital.
Moreover, the absence of medical records was only one reason the IJ gave for
finding that Ms. Adongafac did not provide adequate corroborating evidence for
weak testimony that she could not support with “any detail outside the parameters of
the limited detail provided.” There was no objective corroborating evidence
regarding the other persons arrested with Ms. Adongafac at the restaurant; how her
Uncle arranged her “escape” from the hospital and secured the help of a government
official for her departure; whether she could have located her husband; whether she
had no contact with her husband, daughter, and sister in Maryland before entering the
United States; and the details of her apparently extensive travels en route to the
United States. Ms. Adongafac’s explanation for each of these evidentiary omissions,
standing alone, was perhaps understandable. But the IJ and the BIA were required
to look at the record as a whole. Applying the governing deferential standard of
review, we will not reverse the BIA’s ruling that the credible but weak testimony
supporting her asylum claim was not adequately corroborated. We are not
“compelled to conclude that such corroborating evidence is unavailable.” 8 U.S.C.
§ 1252(b)(4). Accordingly, Ms. Adongafac failed to establish her eligibility for
asylum relief.
III. Conclusion
For the foregoing reasons, we deny the petition for review.
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