Chantal Ntangsi v. Michael B. Mukasey ( 2009 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 08-1321
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Chantal Nayoh Ntangsi, *
*
Petitioner, *
* Petition for Review from an Order of
* the Board of Immigration Appeals.
v. *
*
Eric H. Holder, Jr., Attorney General *
1
of the United States of America, *
*
Respondent. *
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Submitted: November 14, 2008
Filed: February 9, 2009
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Before MURPHY, HANSEN, and RILEY, Circuit Judges.
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RILEY, Circuit Judge.
Chantal Nayoh Ntangsi (Ntangsi), a native and citizen of Cameroon, seeks
review of a final order of removal issued by the Board of Immigration Appeals (BIA)
affirming the Immigration Judge’s (IJ) decision finding Ntangsi removable as charged
1
Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General
Eric H. Holder, Jr. is automatically substituted for former Attorney General Michael
B. Mukasey as respondent in this case.
and denying her application for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We deny the petition for review.
I. BACKGROUND
Ntangsi attempted to enter the United States through Miami, Florida, on
September 2, 1999. That same day, Ntangsi was charged with being removable for
failing to possess a valid entry document and because she was likely to become a
public charge because she had no financial means of support. On February 21, 2002,
Ntangsi was also charged with being an alien who sought to enter the United States
by fraud.
Ntangsi applied for asylum on June 13, 2000, claiming she was seeking asylum
on the basis of political opinion. Ntangsi stated her father was an active and vocal
member of the Social Democratic Front (SDF) and that he was arrested in March of
1995 at an SDF rally. As a result of her father’s arrest, Ntangsi claimed military
officers came to Ntangsi’s house and beat Ntangsi and her family, requiring the family
to undergo one week of hospitalization. Ntangsi declared her father was also arrested
later in 1995 and again on January 16, 1996, when he was detained for a month and
tortured. Ntangsi asserted her father lost his job with the Cameroon Development
Corporation (CDC), a governmental agency in Cameroon, because of the detention,
and had to return to a village to farm and raise livestock.
Ntangsi maintains she is not a member of the SDF. However, Ntangsi reported
she was arrested and beaten on May 20, 1999, when she and eight other students at
Unity College refused to march wearing uniforms of the ruling political party in
Cameroon, and wore SDF uniforms instead. Ntangsi stated she and the other students
were detained for three days in a single cell and released after affixing fingerprints to
a statement.
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Ntangsi also contended her uncle published a newspaper article on June 18,
1999, that was critical of the government. When the police came looking for her
uncle, he was not home. When the police returned a second time, Ntangsi claims the
police told her about her uncle’s article and arrested Ntangsi, explaining she was being
arrested in place of her uncle so her uncle would report himself to the police. Ntangsi
testified she was beaten, kicked, raped by two policemen, and released after two days
in detention. The police allegedly told her they would return to look for her uncle and
if they did not find him they would arrest Ntangsi again and detain her forever.
Ntangsi asserts she went to a Franciscan convent, where she stayed for two months
before the nuns arranged her flight to the United States.
In support of her application for asylum, Ntangsi submitted evidence, including
a letter from her father dated January 10, 2001, stating he earned a living raising
livestock after he lost his job with the CDC in 1997. Ntangsi also submitted a letter
from Chi Nubila Frida (Nubila), a nurse who reported she treated Ntangsi and her
family at the hospital after they were beaten.
On February 25, 2003, the IJ issued a written decision finding Ntangsi was
removable on the three charges of removability. The IJ also made an adverse
credibility finding, noting Ntangsi’s testimony about her father’s employment history
was inconsistent with documentary evidence. The documentary evidence included a
United States Embassy investigation indicating Ntangsi’s father remained employed
at the CDC during the period of time Ntangsi claimed he was raising livestock. The
government also submitted Ntangsi’s father’s leave statements and career record. In
contrast to Ntangsi’s testimony she was not a member of the SDF, a letter from the
SDF stated Ntangsi was a member. Finally, the IJ determined Ntangsi failed to
corroborate her claim with either her uncle’s article or with a letter from the convent
or the nuns.
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On February 6, 2004, at both parties’ request, the BIA remanded the decision
so the IJ could consider newly submitted evidence. The government submitted a
document from the United States Embassy investigation stating the Embassy’s fraud
investigator contacted the Director of Limbe General Hospital, where Ntangsi and her
family were allegedly treated. According to the hospital director, Nubila worked as
a nurse at the hospital, but Nubila would have had no authority to sign such a
document on behalf of the hospital. The hospital director also checked the hospital’s
records and told the Embassy investigator he was unable to find records on the names
mentioned in Nubila’s attestation. The hospital director considered Nubila’s
attestation false. In response, Ntangsi submitted another attestation from Nubila who
repeated the claim she had treated Ntangsi and her family at the hospital and discussed
the hospital’s poor record keeping. Ntangsi also submitted a letter from her father
stating he was fired from the CDC in 1997 and reinstated in 2001.
The IJ issued an oral opinion on June 28, 2006, finding Ntangsi removable as
charged and denying her application for asylum, withholding of removal, and
protection under the CAT. The IJ again made an adverse credibility finding. The IJ
noted the inconsistency between Ntangsi’s testimony her father was fired from his job
because of his political affiliations and the government’s evidence Ntangsi’s father
had been employed by the CDC almost continuously for many years. The IJ rejected
Ntangsi’s claim she was unaware of her father’s continued employment with the CDC.
The IJ also noted the contradictory evidence regarding Ntangsi’s claimed medical
treatment and Ntangsi’s claim she was not a member of the SDF. The IJ observed
Ntangsi failed to provide any documentation supporting her claim that her uncle wrote
an article that was the cause of her alleged arrest, despite the fact that the Cameroon
Herald is a well recognized newspaper and the article should be available. The IJ also
found it significant Ntangsi provided no corroboration for her claim from the
Franciscan nuns, who played a crucial role in her escape from Cameroon, and with
whom she allegedly hid for two months. Based on these findings, the IJ denied
Ntangsi’s application for asylum, withholding of removal, and CAT protection.
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Ntangsi appealed the IJ’s decision to the BIA, challenging the IJ’s adverse
credibility finding and arguing the IJ relied on irrelevant factors and ignored evidence.
Ntangsi also contended the IJ erred by relying on documents produced during the
overseas investigation, claiming the investigation was unreliable. The BIA dismissed
Ntangsi’s appeal and affirmed the IJ’s finding Ntangsi lacked credibility and failed to
meet her burden of proof. The BIA also determined the IJ properly considered a
United States Embassy report finding Ntangsi’s father held his employment with the
CDC much later than Ntangsi alleged. Ntangsi now challenges the adverse credibility
finding, the finding that she failed to provide sufficient corroboration of her claims,
and the denial of her asylum, withholding of removal, and CAT claims.2
II. DISCUSSION
A. Adverse Credibility Finding
Ntangsi argues the IJ’s adverse credibility finding was erroneous and the BIA
“rubber-stamped” the IJ’s decision without adequately reviewing the records to
determine whether substantial evidence supported the IJ’s adverse credibility finding.
“Administrative findings of fact, including findings on credibility, are conclusive
unless any reasonable adjudicator would be compelled to conclude to the contrary.”
Al Milaji v. Mukasey, 551 F.3d 768, 772 (8th Cir. 2008) (quoting Rafiyev v.
Mukasey, 536 F.3d 853, 856 (8th Cir. 2008)). “Credibility findings in particular are
entitled to much weight because the IJ sees the witness testify and is therefore in the
2
In her statement of issues, Ntangsi also alleges the United States Embassy
report was “questionable” and the government’s overseas investigator was
“unreliable,” under Ezeagwuna v. Ashcroft, 325 F.3d 396 (3d Cir. 2003), and
Cordero-Trejo v. I.N.S., 40 F.3d 482, 487 (1st Cir. 1994). In her brief, Ntangsi fails
to explain why the report was questionable and the investigator unreliable, fails to
discuss how the reasoning of Ezeagwuna or Cordero-Trejo applies to her case, and
otherwise fails to address these issues. Because Ntangsi did not argue these issues in
her brief, we will not review them. See United States v. Simmons, 964 F.2d 763, 777
(8th Cir. 1992) (“As a general rule, an appellate court may review only the issues
specifically raised and argued in an appellant’s brief.”).
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best position to determine his or her credibility.” Id. (quoting Fofanah v. Gonzales,
447 F.3d 1037, 1040 (8th Cir. 2006)). We give deference to “an [IJ’]s credibility
finding where the finding is supported by a specific, cogent reason for disbelief.” Id.(citing Sow v. Mukasey, 546 F.3d 953, 956 (8th Cir. 2008)); Perinpanathan v. I.N.S.,
310 F.3d 594, 597 (8th Cir. 2002) (quotation and citations omitted).
The IJ based the adverse credibility finding in part on inconsistencies regarding
Ntangsi’s father’s employment history with the CDC, rejecting Ntangsi’s contention
she was unaware of her father’s continued employment with the CDC. Ntangsi argues
her father’s employment with the CDC is not central to her claim, and the IJ erred in
placing so much emphasis on this inconsistency. “Inconsistencies or omissions in an
asylum application that relate to the basis of persecution are not minor but are at ‘the
heart of the asylum claim.’” Esaka v. Ashcroft, 397 F.3d 1105, 1110 (8th Cir. 2005)
(quoting Kondakova v. Ashcroft, 383 F.3d 792, 796 (8th Cir. 2004)).3 Ntangsi claims
her family was beaten and hospitalized due to her father’s support of the SDF.
Ntangsi also maintained her father was fired from his job with the CDC because of his
support of the SDF and his prolonged detention. If Ntangsi’s father actually remained
employed with the CDC during the time Ntangsi stated he was raising livestock, this
fact casts doubt on Ntangsi’s claim she and her family were ever harmed or persecuted
because Ntangsi’s father supported the SDF. We agree with the BIA’s determination
that “the abuse [Ntangsi] alleges she received during her second arrest related to
activities of her uncle was allegedly much worse. Nonetheless, the first arrest and her
father’s political affiliations remain quite important to her case.” We therefore
3
The REAL ID Act of 2005 allows an IJ to make a credibility determination
“without regard to whether an inconsistency, inaccuracy, or falsehood goes to the
heart of the applicant’s claim.” Al Milaji, 551 F.3d at 772 n.2. (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)). This provision applies only to aliens who applied for asylum
or related relief on or after May 11, 2005. Id. Because Ntangsi filed her application
for asylum, withholding of removal, and protection under the CAT in 2000, this
specific statutory standard does not apply in Ntangsi’s case.
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conclude the inconsistency in Ntangsi’s father’s employment history with the CDC
goes to the heart of Ntangsi’s asylum claim.
In addition to Ntangsi’s father’s employment with the CDC, the IJ noted
inconsistencies regarding whether Ntangsi was actually a member of the SDF. The
IJ also observed inconsistencies between nurse Nubila’s testimony and the hospital
director’s statements that (1) the medical records do not indicate any treatment of
Ntangsi and her family, and (2) Nubila was not authorized to sign such a statement on
behalf of the hospital. These factual findings are amply supported in the record, and
the IJ provided “specific, cogent reasons” for the adverse credibility finding. We
therefore give deference to the IJ’s adverse credibility finding.
B. Corroboration of Ntangsi’s Claims
Ntangsi contends it was unreasonable for the IJ and BIA to require her to
corroborate her claims because her claims were not reasonably subject to verification.
The IJ and the BIA may require corroborating evidence where it is reasonable to do
so. See Khrystotodorov v. Mukasey, 551 F.3d 775, 782 (8th Cir. 2008) (citing Eta-
Ndu v. Gonzales, 411 F.3d 977, 984 (8th Cir. 2005)). “We may not reverse the IJ’s
determination with respect to the availability of corroborating evidence unless a
reasonable trier of fact would be compelled to conclude that the evidence is
unavailable.” Id. (citing 8 U.S.C. § 1252(b)(4)).
Regarding the nuns with whom Ntangsi allegedly hid for two months, the IJ
declared,
The court just does not understand why we do not have any sort of
corroboration of any kind from this recognized religious organization.
This is a Catholic religious order, and there is every reason to believe
that [Ntangsi] would be able to contact them and get corroborating
information. This has not been done.
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The court views this as a case where corroboration is very crucial.
We have some very significant contradictions in the evidence that has
been presented by [Ntangsi]. . . . The people who had the most contact
with [Ntangsi] during the time when she asserts she was having the most
serious problems in Cameroon are the nuns with whom she hid. Now
[Ntangsi] just has not obtained what this Court believes is meaningful
corroborating evidence that would support her claim that she was
detained, abused in detention, fled to the convent for safety, and then
was the beneficiary of what sounds like a great deal of activity by the
nuns to assist her in leaving the country.
The IJ also referenced Ntangsi failed to produce a copy of the anti-government
newspaper article allegedly written by her uncle which Ntangsi claimed led to her
detention and rape, even though the Cameroon Herald is a well-recognized newspaper
and the article should be available. If the police lied about the article’s existence,
Ntangsi still did not indicate she contacted the Cameroon Herald to obtain a statement
about the existence or non-existence of such an article.
Although Ntangsi contends it would place the nuns in danger if they
acknowledged they harbored her and helped her escape, there is no evidence in the
record Ntangsi made any attempt to contact the nuns and request corroboration.
Ntangsi has provided no explanation for her failure to obtain her uncle’s newspaper
article, and nothing in the record suggests Ntangsi attempted to find the newspaper
article. We see no reason why “a reasonable trier of fact would be compelled to
conclude that the evidence is unavailable.” Khrystotodorov, 551 F.3d at 782. The IJ
and BIA did not err by requiring Ntangsi to corroborate her claims.
C. Asylum, Withholding of Removal, and CAT Relief
Ntangsi argues the BIA erred by denying her claims for asylum, withholding
of removal, and relief under the CAT. We review the BIA’s determination that an
alien is not eligible for asylum for substantial evidence, reversing only where “‘the
evidence was so compelling that no reasonable factfinder could fail to find the
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requisite fear of persecution.’” Perinpanathan, 310 F.3d at 597 (quoting Feleke v.
I.N.S., 118 F.3d 594, 598 (8th Cir. 2008)).
“Under the Immigration and Nationality Act, the Attorney General has the
discretion to grant asylum to a ‘refugee.’” Kratchmarov v. Heston, 172 F.3d 551, 553
(8th Cir. 1999) (citing 8 U.S.C. § 1158(b)(1)). “A refugee is a person who is unable
or unwilling to return home ‘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.’” Id. (quoting 8 U.S.C. § 1101(a)(42)(A)). To establish
a well-founded fear of future persecution, an applicant bears the burden of
“demonstrat[ing] a fear that is both subjectively genuine and objectively reasonable.”
Id. (citing Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir. 1998)). An applicant is
entitled to a rebuttable presumption of a well-founded fear of future persecution if the
applicant establishes past persecution. See id.The IJ and BIA made an adverse credibility finding based on specific, cogent
reasons, and further determined Ntangsi failed sufficiently to corroborate her claim.
The BIA may deny an asylum claim on the basis of an adverse credibility finding. See
Sheikh v. Gonzales, 427 F.3d 1077, 1081 (8th Cir. 2005). The BIA did not err by
determining Ntangsi lacked credibility and therefore Ntangsi did not meet her burden
of establishing either past persecution or a well-founded fear of future persecution.
Substantial evidence supports the denial of Ntangsi’s asylum claim, and Ntangsi’s
evidence of past persecution was not “so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.” Perinpanathan, 310 F.3d at 597(quoting Feleke, 118 F.3d at 598).
Unlike a discretionary grant of asylum, withholding of removal is mandatory
if Ntangsi can show by a “‘clear probability’ that h[er] life or freedom will be
threatened on account of” her political opinion. See Tolego v. Gonzales, 452 F.3d
763, 766 (8th Cir. 2006) (quoting I.N.S. v. Stevic, 467 U.S. 407, 430 (1984)); 8 U.S.C.
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§ 1231(b)(3)(A). The “clear probability” standard is a higher standard than the
standard for establishing eligibility for asylum. See Alanwoko v. Mukasey, 538 F.3d
908, 911 (8th Cir. 2008). Because Ntangsi failed to establish eligibility for asylum,
she necessarily failed to meet the higher standard for withholding of removal. See
Esaka, 397 F.3d at 1111 (8th Cir. 2005) (citing Krasnopivtsev v. Ashcroft, 382 F.3d
832 (8th Cir. 2004)).
“A denial of relief under the [CAT] is reviewed to determine whether the
evidence was so compelling that a reasonable factfinder must have found the alien
entitled to relief.” Esaka, 397 F.3d at 1111 (citing Ngure v. Ashcroft, 367 F.3d 975,
992 (8th Cir. 2004)). “To receive protection under the CAT, [Ntangsi] must show that
she is more likely than not to suffer torture if returned to Cameroon.” Id. (citing 8
C.F.R. § 208.16(c)(2)). “An IJ’s adverse credibility determination and adverse
decisions on asylum and withholding of removal are not determinative of the CAT
claim[, but] an IJ can properly consider a claimant’s discounted credibility when
determining whether he or she will be subject to torture.” Id. (citations omitted). Due
to the adverse credibility finding, Ntangsi failed to establish she suffered past torture.
Ntangsi also failed to present evidence she would be targeted in any way upon return
to Cameroon. Ntangsi’s evidence was not “so compelling that a reasonable factfinder
must have found [Ntangsi] entitled to relief.” Id. (citing Ngure, 367 F.3d at 992). The
BIA did not err by determining Ntangsi was ineligible for relief under the CAT.
III. CONCLUSION
We deny the petition for review.
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