Nuga Ivo Nyama v. John Ashcroft ( 2004 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 02-3518
___________
Nuga Ivo Nyama, *
*
Petitioner, *
* On Petition for Review from the
v. * Board of Immigration Appeals
*
John Ashcroft, *
* [PUBLISHED]
Respondent. *
___________
Submitted: December 19, 2003
Filed: February 6, 2004
___________
Before MORRIS SHEPPARD ARNOLD, LAY, and RILEY, Circuit Judges.
___________
PER CURIAM.
Nuga Ivo Nyama, a citizen of Cameroon, arrived illegally in the United States
in early October, 1999. Removal proceedings were commenced against him shortly
thereafter. Nyama applied for asylum, withholding of removal, and relief under the
Convention Against Torture. The Immigration Judge (“IJ”) denied these applications
and ordered Nyama to be removed from the United States. The Board of
Immigration Appeals (“BIA”) summarily affirmed this decision. Nyama now appeals,
and we affirm.
I. BACKGROUND
Nyama, a 25-year-old male, was born in Mankon, Cameroon, on December 6,
1978. Nyama has never been a member of a political party. He claims, however, that
his brother and father were both members of a political opposition group in Cameroon
called the Social Democratic Front (“SDF”) beginning in the early 1990s. According
to Nyama, his father was a senior advisor in a local SDF chapter in a northwestern
province of Cameroon and was driven into hiding on numerous occasions for his
political activities. Nyama does not currently know where he is. Nyama further
asserts that his brother was arrested while on his way home from an SDF meeting in
1991. He was detained for two months and then released, badly beaten. He died two
days later from these injuries. Nyama’s sister and mother were arrested in 1999 in an
attempt by the police to force Nyama’s father to surrender. Nyama claims that he was
also pursued by the authorities, but managed to avoid them. Through the help of his
uncle, he eventually obtained a ticket, passport, and visa to leave Cameroon for
Jamaica. He traveled instead to the United States and entered the country without a
visa, leading to these removal proceedings. Nyama did not contest removal, but
instead applied for asylum under 8 U.S.C. §§ 1158(b)(1) and 1101(a)(42)(A),
withholding of removal under 8 U.S.C. § 1231(b)(3), and relief under the Convention
Against Torture under 8 C.F.R. § 208.16(c).
Nyama testified before the IJ to the above facts. Nyama also presented reports
on the conditions of Cameroon and four letters from his sister and friends from
Cameroon. On cross examination by the government, Nyama stated that while he
had a sister living in Cameroon, he had no siblings, half-siblings, or other relatives
living in the United States.
After Nyama testified, the INS presented recent asylum applications from three
other individuals named Nyama, all of whom, like Petitioner, were currently living
in St. Paul, Minnesota. All three bore striking similarities to Nyama’s own
-2-
application. All the applicants claimed the same father as Nyama, Nayasa William
Nyama, with variations of the spelling “Nayasa.” All the applicants claimed
essentially the same address as Nyama in Cameroon, with some minor variations.
Finally, the applicants basically told the same story in their applications: that their
father was very active in the SDF, he disappeared, and that their uncle (or, in the case
of one applicant, an unidentified “someone”) helped them escape Cameroon.
Petitioner stated that he did not know these other applicants, that he was unaware that
they were claiming to have the same father, and that he was surprised by the whole
situation.
The IJ was puzzled by the other applications and understandably concerned
that, “even a part [sic] from [the other applications, there was a] lack of any sort of
corroboration of the core factual basis of [Nyama’s story,] which is the father’s
involvement in the SDF.” (A.R. 163.) The IJ granted Nyama an additional six
months to obtain these corroborating documents and for the INS to subpoena the
three other applicants. When the hearing reconvened six months later, Nyama
submitted no additional corroborating evidence. The three other applicants, despite
having been subpoenaed, did not show up to testify. Nyama did not object to their
nonappearance.
In his decision, the IJ stated that, in light of the other applications, he was
concerned that “the activities of Nayasa William Nyama are entirely fabricated.”
(A.R. 53.) The IJ noted that the father’s political activities were “particularly
important in the context of this case because the respondent himself never had any
political involvements of his own.” (A.R. 53-54.) Remarking that it was “absolutely
inexplicable” that Nyama had made no effort to obtain verification from the SDF, the
IJ found that, “[c]oupling this unexplained failure to obtain corroboration with these
other asylum application[s] identifying a William Nayasa Nyama as the father, the
Court has very grave reasons to doubt this respondent’s credibility.” (A.R. 54-55.)
-3-
The IJ ordered Nyama’s removal, denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture. Nyama
now appeals, claiming that the IJ made numerous errors, that there was substantial
evidence to support his application for asylum, and that the BIA’s summary
affirmance of the IJ’s decision violated his due process rights.
II. ANALYSIS
A. Substantial Evidence
The Attorney General may, in his discretion, grant asylum to an individual who
meets the statutory definition of a “refugee:” an alien who is unwilling to return to
his home 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.” See 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A).1 This court reviews
the BIA’s determination2 that an applicant failed to establish statutory eligibility for
asylum and withholding of removal for “substantial evidence.” See INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Perinpanathan v. INS, 310 F.3d 594, 597 (8th
Cir. 2002). The substantial evidence standard is a deferential one, requiring a
reviewing court to uphold a denial of asylum unless an alien demonstrates “that the
evidence he presented was so compelling that no reasonable fact finder could fail to
find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-84.
1
An asylum seeker’s request for asylum is contemporaneously viewed as an
application for withholding removal. The standard for withholding removal is more
burdensome on the applicant than for asylum. To establish eligibility for withholding
removal, an applicant must demonstrate a “clear probability” of persecution. See
Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir. 2002).
2
When the BIA affirms an IJ’s opinion without additional explanation, the IJ’s
opinion becomes the subject of our judicial review. See Maashio v. INS, 45 F.3d
1235, 1238 (8th Cir. 1995).
-4-
Nyama argues on appeal that the testimony he gave before the IJ, together with
the handwritten letters from his sister and friends and the human rights reports and
other documents describing the political climate in Cameroon, establishes a well-
founded fear of future persecution sufficient to support his application for asylum.
We do not believe, however, that Nyama’s evidence establishes a well-founded fear
of future persecution. Instead, we agree with the IJ that the existence of the other
applications, together with a lack of any corroboration of Nyama’s father’s or
brother’s involvement in the SDF (and Nyama’s inexcusable failure to even attempt
to obtain this corroboration), gives reason to doubt the veracity of Nyama’s story.
Nothing in Nyama’s appeal persuades us that the IJ’s skepticism was
unfounded. Nyama does not attempt to unravel the mystery of the four corresponding
applications, or otherwise explain why his story is to be believed. Instead, Nyama
contests the admissibility of the three other applications, the IJ’s credibility
determination, and the IJ’s demand that Nyama obtain additional corroborating
evidence.
First, Nyama argues that the other applications should not have been admitted
because they were hearsay. This is incorrect. The reports were offered not to prove
the truth of the matter asserted, but instead to impeach the credibility of Nyama’s
asylum narrative. See Fed. R. Evid. 801(c); Foster v. Gen. Motors Corp., 20 F.3d
838, 839 (8th Cir. 1994) (holding that the admission of a report was not hearsay
because it was not offered to prove its truth, but to impeach the veracity of the
witness’s direct testimony). Even if they were hearsay, however, the applications
were still properly admitted. The traditional rules of evidence do not apply to
immigration proceedings. See, e.g., Henry v. INS, 74 F.3d 1, 6 (1st Cir. 1996). “The
sole test for admission of evidence is whether the evidence is probative and its
admission is fundamentally fair.” Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995).
This is true even for hearsay evidence. See Kiareldeen v. Ashcroft, 273 F.3d 542,
549 (3d Cir. 2001). There is no question that these additional applications were
-5-
highly probative of the authenticity of Nyama’s asylum narrative and his eligibility
for asylum, and we do not find that their admission was unfair to Nyama.
Second, Nyama argues that the admission of the applications denied him due
process of the law because he was “ambushed” by these applications and did not have
reasonable time to examine the evidence against him. See 8 U.S.C. § 1229a(b)(4)(B).
However, given that the applications were offered to impeach Nyama’s credibility,
we do not believe that the government had a duty to disclose them any earlier. Cf.
Fed. R. Civ. P. 26(a)(1)(B) (providing an exception to the regular disclosure
requirements when documents will be used “solely for impeachment”). Furthermore,
the IJ did not admit the applications or require Nyama’s counsel to object at the time
the government first introduced them. He admitted them only when the hearing
reconvened six months later, allowing Nyama’s counsel the opportunity to object at
that time. Thus, there was no unfair surprise.
Third, Nyama argues that there was no nexus between the record and the IJ’s
adverse credibility decision. In evaluating such determinations, “[t]his court defers
to an immigration judge’s credibility finding where the finding is supported by a
specific, cogent reason for disbelief.” Perinpanathan, 310 F.3d at 597 (quotations and
citations omitted). Here, the IJ’s credibility determination was supported by the
existence of four very similar applications for asylum, all of which claimed the same
father. As Nyama testified that he had no siblings in the United States, the direct
implication of these applications was, as the IJ pointed out, that “the activities of
Nayasa William Nyama are entirely fabricated.” (A.R. 53.) The IJ very generously
gave Nyama six months to gather more information to corroborate his shaky story and
explain what was going on. After six months, however, Nyama could not explain the
existence of the other applications or present a single piece of additional evidence to
corroborate his story. In fact, it appears that Nyama did not even make an effort to
contact the SDF even though the IJ had admonished him that he must do this for his
asylum application to succeed. Furthermore, it came out at this time that he did, in
-6-
fact, know at least two of the other people who had filed the similar applications.
Under these circumstances, we find no error in the IJ’s credibility determination.
Finally, the IJ did not err in demanding additional corroborating evidence.
Nyama argues that under Diallo v. INS, 232 F.3d 279 (2d Cir. 2000), credible
testimony supported by reasonable explanations for lack of corroborative evidence
should sustain a claim for asylum. Id. at 289-90. Here, however, it was precisely
because Nyama’s asylum narrative was not credible that the IJ was seeking
corroboration that would support Nyama’s story. Furthermore, Nyama had no
explanation as to why he did not contact the SDF or other human rights organizations.
Thus, the IJ’s demand for further corroboration was not error.
Accordingly, we hold that, considering the record as a whole, substantial
evidence supports the IJ’s conclusion that Nyama is not eligible for asylum.
B. Due Process
Nyama contends that the BIA’s summary affirmance of the IJ’s decision
violated his right to due process.3 We must disagree, however, as this court has
recently decided this issue, finding that the BIA’s streamlining procedures do not
violate a petitioner’s due process rights. See Loulou v. Ashcroft, --- F.3d ----, 2003
WL 23025601 (8th Cir., Dec. 30, 2003).
3
Nyama’s brief also contends that “the immigration judge committed a number
of procedural errors that resulted in a violation of Mr. Nyama’s due process rights.”
This section of the brief, however, primarily discusses the BIA’s summary affirmance
and does not mention any specific “procedural errors” committed by the IJ. It is
therefore not clear whether Nyama is referring to his former arguments or whether he
believes the IJ to be guilty of some other “procedural errors.” Whatever the case may
be, after a close review of the record, we find nothing to suggest that the IJ violated
Nyama’s due process rights.
-7-
III. CONCLUSION
The order of the Board of Immigration Appeals is AFFIRMED.
______________________________
-8-