Ntamack v. Holder

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-2398
CALLIXTE JEAN MARIE NTAMACK,
Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: January 29, 2010 Decided: March 30, 2010
Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and
Jackson L. KISER, Senior United States District Judge for the
Western District of Virginia, sitting by designation.
Petition for review denied by unpublished per curiam opinion.
ARGUED: Danielle L. C. Beach-Oswald, BEACH-OSWALD IMMIGRATION
LAW ASSOCIATES, PC, Washington, D.C., for Petitioner. Carol
Federighi, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Amy M. Grunder, BEACH-OSWALD
IMMIGRATION LAW ASSOCIATES, PC, Washington, D.C., for
Petitioner. Tony West, Assistant Attorney General, William C.
Peachey, Assistant Director, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
The Board of Immigration Appeals (“BIA”) denied the
application of Callixte Ntamack, a native and citizen of
Cameroon, for asylum, withholding of removal under the
Immigration and Nationality Act (“INA”), and withholding or
deferral of removal under the Convention Against Torture
(“CAT”), based on the statutory “persecutor bar” to relief and
on Ntamack’s failure to demonstrate that he will be tortured if
returned to Cameroon. The BIA found that Ntamack had been a
longtime member of Cameroon’s national gendarmerie and judicial
police force and had “ordered, incited, assisted, or otherwise
participated” in the persecution of others based on grounds
protected by the INA.
Because the BIA’s findings are supported by substantial
evidence in the record, we deny Ntamack’s petition for review.
I
After completing high school in 1983, Ntamack became a
member of Cameroon’s gendarmerie and entered two years of
professional schooling and training. Upon completion of that
schooling and training, he served variously as an investigator,
a noncommissioned officer in the anti-gang unit, and a judicial
police officer. After 14 years of service, Ntamack fled
3
Cameroon in 1999 and entered the United States on a 6-month
nonimmigrant visa, where he sought asylum.
During the years in which Ntamack was a member of the
gendarmerie and judicial police, the State Department country
reports for Cameroon and reports from human rights organizations
indicated that these organizations frequently committed human
rights abuses, including unlawful killings, the use of harsh
interrogation techniques, and torture. In his application for
asylum, however, Ntamack stated that he was opposed to these
abuses and refrained from using the violent interrogation
techniques employed by his colleagues. While acknowledging that
the government falsely accused innocent people for political
ends, Ntamack also denied that he participated in such cases.
He justified his continued membership in the gendarmerie and the
judicial police with his need to support his wife and six
children.
Shortly after entering the United States, Ntamack filed an
application for asylum, but his application was denied. Because
he was, at the time, still lawfully within the United States,
removal proceedings were not initiated against him.
In June 2002, Ntamack again applied for asylum, and again
his application was denied. At this time, however, his case was
referred to an immigration judge as he had overstayed his visa.
While Ntamack conceded removability at the hearing before the
4
immigration judge, he requested asylum, withholding of removal
under both the INA and the CAT, and deferral of removal under
the CAT. In support of his application, Ntamack testified that
he had been imprisoned three times in Cameroon for
insubordination and suspicion of supporting the opposition to
the government. He stated that, on each occasion, his superiors
believed that he was supporting the opposition because of his
unwillingness to engage in repressive conduct, and on each
occasion he was interrogated and beaten.
His first imprisonment was in 1991, when his unit was sent
to suppress a demonstration in the province of Bamenda. Rather
than employ violent tactics, as he was ordered to do, Ntamack
falsely claimed to be suffering from a stomach ache and was sent
to a military hospital for testing. When the medical reports
showed no evidence of a problem, Ntamack was imprisoned for
insubordination, questioned about his political opinion, and
accused of sympathy with the opposition. During this stay, he
was handcuffed, tied up, beaten, and whipped while being
interrogated. When he was tried, however, he was acquitted due
to a lack of evidence, and, after being given a few days in the
hospital to rest, he was allowed to return to work.
The second imprisonment occurred in 1992, when Ntamack was
dispatched with his unit to quell a student demonstration at the
University of Yaounde, during which the students were demanding
5
democratic reforms and freedom. Ntamack stated that while he
attempted to persuade his colleagues to refrain from violence
and sought to negotiate with the students, his pleas were
rejected. Instead, members of his unit arrested, beat, and
wounded some of the students. Describing his own role during
the demonstration, Ntamack stated, “We made a line and we
start[ed] going towards the students, and we start beating on
those who did not want to obey the order.” When asked to be
more specific about his own actions, he stated, “I held myself
back a bit. Since (indiscernible) student divided the campus, I
tried (indiscernible) some of the group and asked them to go
back, to go back into the classroom.” Upon his return to
headquarters, Ntamack was again questioned about his political
opinions and accused of not actively participating in orders to
disperse the students. Ntamack was again imprisoned for
insubordination and, he claimed, was beaten and interrogated
under all kinds of conditions -- “bright lights day and night.”
When he was taken before a tribunal, he was again acquitted for
lack of evidence, and again he returned to work in the
gendarmerie.
Ntamack was imprisoned the third time in 1997 when he was
assigned to assist at polling stations during the presidential
election. After he told election observers about irregularities
and ballot-box tampering, his superiors questioned him about his
6
political views. He was again sent to prison, interrogated, and
beaten to the point of unconsciousness. Ntamack remained in
prison until August 1999, when, with the assistance of friends,
he escaped. He stated that a friend, who worked at the prison,
opened the cell, permitting Ntamack to exit through the front of
the building. Two friends waited there in a car and drove him
away. He then went into hiding, where he remained for
approximately a month, before departing for the United States.
In addition to giving his own testimony at the hearing,
Ntamack also presented the testimony of Anne Catherine Enane,
who confirmed some of what Ntamack stated, especially about the
events at the University of Yaounde. He also presented
documentary evidence in the form of prison discharge documents,
letters from relatives, and the State Department country reports
for Cameroon.
After the hearing, the immigration judge denied Ntamack’s
application for asylum, withholding of removal under the INA,
and withholding of removal and deferral of removal under CAT.
The judge found Ntamack’s testimony not to be credible for
several reasons. The judge noted that Ntamack’s testimony
lacked detail about certain events and was inherently
inconsistent -- he testified to imprisonment and mistreatment,
yet he was allowed to remain a member of the gendarmerie.
Indeed, he was even promoted, becoming a member of the judicial
7
police. The immigration judge also found discrepancies between
Ntamack’s story and that of Enane.
On the merits, the immigration judge ruled that Ntamack had
not suffered past persecution because of his political opinions.
Rather, his imprisonment and mistreatment were due to his
insubordination. The immigration judge also found that Ntamack
had failed to make a showing under CAT that it was more likely
than not that he would be tortured if returned to Cameroon,
observing that nothing in the record indicated the government’s
ongoing interest in him. The judge acknowledged that Ntamack
might have to serve a sentence upon his return, but that such
punishment would be a legal response to his escape.
The immigration judge found that even if Ntamack had made
the necessary showing for relief, the judge would deny relief
because Ntamack was a persecutor, barring relief by statute.
The judge found that the gendarmerie was a persecutory
organization that had committed acts of violence against the
students based on their political beliefs. While the judge
acknowledged that Ntamack had attempted to withdraw himself
somewhat from violent actions, he nonetheless found that Ntamack
was “part of these units where people [were] being questioned,
harmed, and beaten, and therefore, [was] also part of the
persecutory arm of government.” The immigration judge rejected
Ntamack’s financial justification for remaining with the
8
gendarmerie and determined that Ntamack had failed to carry his
burden of demonstrating that he was not a persecutor.
On appeal, the BIA affirmed. It stated that it did not
need to address the immigration judge’s adverse credibility
determination because Ntamack was statutorily barred from relief
because he was a persecutor. While recognizing that mere
membership in a persecutory organization was insufficient to bar
relief, the BIA noted that Ntamack had furthered persecution
through his inaction toward other members of his unit committing
acts of persecution, his participation in the imprisonment of
others, and his assistance in making a show of force toward the
protesting students. In view of this evidence of persecution,
the BIA ruled that Ntamack had failed to meet his burden of
showing, by a preponderance of the evidence, that the
“persecutor bar” did not apply.
In addition, the BIA affirmed denial of Ntamack’s request
for deferral of removal under CAT because Ntamack had failed to
demonstrate that it was more likely than not that he would be
tortured upon his return to Cameroon.
From the BIA’s decision, Ntamack filed this petition for
review, contending (1) that the BIA erred in finding him a
persecutor; (2) that the evidence showed that it was more likely
than not that he would be tortured on his return to Cameroon;
and (3) that the Department of Homeland Security and the State
9
Department, in their investigation of his claims abroad,
violated his right to confidentiality, protected by 8 C.F.R. §
208.6.*
II
We review the BIA’s factual findings under the substantial
evidence standard, reversing only if the evidence compels a
contrary finding. 8 U.S.C. § 1252(b)(4)(B).
For his principal argument on appeal, Ntamack challenges
the BIA’s determination that he engaged in persecutory conduct,
thus barring him from eligibility for asylum and withholding of
removal, under both the INA and CAT.
The “persecutor bar” precludes the applicant from asylum
and withholding of removal upon a finding that “the alien
ordered, incited, assisted, or otherwise participated in the
persecution of any person on account of race, religion,
nationality, membership in a particular social group, or
political opinion.” See 8 U.S.C. § 1158(b)(2)(A)(i) (asylum);
see also id. § 1231(b)(3)(B)(i) (withholding removal under the
INA); 8 C.F.R. § 1208.16(d)(2) (withholding removal under CAT).
*
Ntamack also seeks to challenge the immigration judge’s
adverse credibility finding. But because the BIA expressly
declined to consider the immigration judge’s credibility
determination, the issue is not properly before us. “[O]nly the
findings and order of the BIA, not those of the IJ,” are before
us on appeal. Li Fang Lin v. Mukasey, 517 F.3d 685, 687-88 &
n.2 (4th Cir. 2008).
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Physical participation in the persecution of others is not
required for the persecutor bar to apply. Rather, the test is
whether the applicant’s conduct objectively furthered the
persecution of others. See Higuit v. Gonzales, 433 F.3d 417,
421 (4th Cir. 2006); In the Matter of Federenko, 19 I. & N. Dec.
57, 69 (BIA 1984) (holding that alien’s subjective intent is
irrelevant and that persecutor bar applies if the objective
effect of alien’s actions is to further persecution, even if in
some “small measure”). If “evidence indicates” that the
applicant assisted or otherwise participated in persecution, the
burden then shifts to the applicant to prove by a preponderance
of the evidence that he did not contribute to the alleged
persecutory acts. 8 C.F.R. §§ 208.16(d)(2), 1208.16(d)(2); see
also Higuit, 433 F.3d at 420-21.
We conclude that, in this case, the record contains
substantial evidence to support the BIA’s finding that Ntamack’s
actions objectively furthered persecution. Ntamack testified to
his participation in quelling a student uprising at the
University of Yaounde by being more than a bystander. He stated
that “we” -- referring to the gendarmes, of which he was one --
beat the students and stood in a line driving them back.
Although he did state that he “held [him]self back a bit,” this
statement is insufficient to remove him from the persecutory
conduct. While he may have demonstrated some hesitation about
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repressive action and his participation may have been less
forceful than that of others, the fact remains that he stated
that he participated in the line pushing back and beating
students.
In addition, Ntamack furthered persecution simply by his
participation in what appears to be a phalanx or show of force
by the gendarmerie against the students. An alien’s physical
presence can provide assistance in persecution when that
presence impedes the movement of those persecuted or otherwise
subjects them to an increased risk of harm. See, e.g.,
Federenko, 19 I. & N. Dec. at 69 (unwilling Nazi prison guard
furthered persecution); Alvarado v. Gonzales, 449 F.3d 915, 928-
29 (9th Cir. 2006) (applicant’s presence and participation in
persecutory interrogation furthered persecution); Negele v.
Ashcroft, 368 F.3d 981, 983-84 (8th Cir. 2004) (Nazi guard who
merely patrolled perimeter of concentration camp furthered
persecution). Thus, Ntamack’s presence in the line that herded
and attacked students could well, by itself, have supported the
BIA’s finding of persecutory conduct.
Ntamack argues that the BIA erroneously concentrated on the
facts of his membership in a persecutory organization and the
length of that membership. While it is true that the BIA
recited those facts, which can indeed be relevant, see Higuit,
433 F.3d at 421 (citing Singh v. Gonzales, 417 F.3d 736, 740
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(7th Cir. 2005)), the BIA did not rely solely on his membership
to support the persecutory bar. Rather, it relied on Ntamack’s
actual participation in the effort to quell the uprising at the
university.
Ntamack also argues that even if his actions furthered
violence against the students, the record reflects that the
gendarmerie was acting to control a riot, rather than attack a
legitimate political demonstration. Accordingly, he reasons
that the gendarmerie was not acting in a persecutory manner
because it did not seek to harm the students on account of a
ground protected by the INA. The record, however, belies this
contention. Statements by Ntamack and others demonstrate that
the students were agitating in favor of democracy and freedom
and that the gendarmerie was sent to quell opposition to the
ruling party.
Finally, Ntamack contends that the BIA failed to credit his
“redemptive acts,” such as his warning Enane of the coming raid
on her dormitory and his urging others to negotiate or return to
their classrooms. But this evidence does not eliminate the
evidence that Ntamack himself aided some persecution, and only
some amount is necessary for the persecutor bar to apply.
Stated otherwise, while Ntamack’s redemptive activities show
that he was less than sympathetic with the repressive goals of
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his unit, they do not compel the conclusion that the persecutor
bar should not apply.
At bottom, substantial evidence supports the BIA’s
conclusion that Ntamack is statutorily barred from receiving
asylum and withholding removal under the INA and CAT.
III
Ntamack also challenges the BIA’s decision to deny him
deferral of removal under 8 C.F.R. § 1208.17(a), which provides
that removal may be deferred when an alien demonstrates that “he
or she is more likely than not to be tortured” if removed.
“Torture” is defined as “an extreme form of cruel and inhuman
treatment” that occurs by or with the consent or acquiescence of
“a public official or other person acting in an official
capacity.” Id. § 1208.18(a)(1)-(2). It does not include “pain
or suffering arising only from, inherent in or incidental to
lawful sanctions [such as] judicially imposed sanctions and
other enforcement actions authorized by law.” Id. §
1208.18(a)(3).
The BIA found that Ntamack had failed to show that it was
more likely than not that he would be tortured. While there is
evidence in the record that Ntamack was imprisoned three times
for insubordination and suspicion that he was supporting the
political opposition, the degree of mistreatment that he
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suffered is not totally clear. He did testify that he was
interrogated under difficult conditions, beaten (once to
unconsciousness), and otherwise mistreated while in prison, but
his testimony also indicates that he was subjected to
mistreatment during the initial phase of his incarceration and
only to incarceration thereafter. Moreover, he never sought
extensive medical attention as a result of his treatment by
authorities. And following the first two imprisonments, he was
released and allowed to return to work as an employee of the
government. The BIA concluded that Ntamack’s mistreatment did
not rise to the extreme level of “torture” as defined under CAT.
The BIA also found that no evidence indicated that the
government had any interest in him now, if he were to return,
except perhaps to punish him for escape. We conclude that the
BIA’s determination, while a close call, is nonetheless
supported by substantial evidence because it cannot be said that
the record compels a contrary conclusion, as required by 8
U.S.C. § 1252(b)(4)(B). Accordingly, we also affirm the BIA’s
decision on deferral.
IV
Finally, Ntamack claims that the overseas investigation
into the authenticity of his prison release orders, which was
conducted by the Department of Homeland Security and the State
15
Department, violated his right to confidentiality, protected by
8 C.F.R. § 208.6(a). He argues that we should remand this case
to the BIA so that he can pursue this claim further.
Ntamack did not, however, raise this argument before the
immigration judge or the BIA, and therefore we do not have
jurisdiction to consider the issue. “A court may review a final
order or removal only if the alien has exhausted all
administrative remedies available to the alien as of
right . . . .” 8 U.S.C. § 1252(d)(1); see also Asika v.
Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (failure to
raise an argument before the BIA is failure to exhaust all
remedies under the statute).
For the foregoing reasons, we affirm the decision of the
BIA and deny Ntamack’s petition for review.
PETITION FOR REVIEW DENIED
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