Patience Njowe Esaka v. John Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-1155
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Patience Njowe Esaka, *
*
Petitioner, *
* Petition for Review of an Order of
v. * the Board of Immigration Appeals.
*
John Ashcroft, Attorney General *
of the United States, *
*
Respondent. *
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Submitted: November 17, 2004
Filed: February 16, 2005
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Before SMITH, BEAM, and BENTON, Circuit Judges.
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SMITH, Circuit Judge.
Patience Njowe Esaka seeks review of an order by the Board of Immigration
Appeals (BIA) affirming an Immigration Judge's (IJ) denial of her application for
asylum, withholding of removal, and protection under the Convention Against
Torture. We deny the petition for review.
I. Background
Patience Njowe Esaka was born on October 1, 1969, in Muyuka Cameroon. In
Cameroon, people fall within one of two linguistic populations: English speaking
persons referred to as Anglophones, and French speaking persons referred to as
Francophones. Esaka and her family are Anglophones. Esaka began high school in
1986 at a government run school in Limbe, Cameroon. She claimed that while in high
school she, along with other students, opposed the rule of Cameroon President Paul
Biya. Esaka's opposition included protesting President Biya's alleged discrimination
against, and persecution of, Anglophone students. Esaka claimed to have attended her
first anti-government demonstration during her first year of high school where she
and other demonstrators protested government tuition increases. The government
responded by arresting several students and using police to disperse the crowd. Esaka
avoided arrest.
Then in February 1987, Esaka protested against the government while
preparing for a Youth Day celebration. Students gathered at school in the early
morning to sing the Cameroon National Anthem. On one occasion, Esaka, along with
other students, sang the Nigerian National Anthem in defiance of President Biya's
government. School administrators punished the defiant students by assigning them
to cut grass instead of attending class the following day. Instead of cutting grass,
however, Esaka and other protestors initiated a demonstration that required police
intervention.
According to Esaka, several students were trampled to death in the ensuing
chaos. She claimed that she was arrested for disturbing the peace and taken, along
with other students, to a detention camp outside of Limbe. While in detention, Esaka
claimed that she was forced to sleep on the floor and given no food or water during
her first day. In addition, she claimed that she was beaten with a bamboo cane and a
belt, and kicked several times. On the third day, Esaka and a group of her friends
escaped by tying together their shirts and bras and using them to scale the detention
wall. During her escape, Esaka cut her leg on the barbed wire that topped the
detention wall. Esaka asserted she then walked fifty miles back to her home in Limbe.
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Although Esaka stated she feared for her life, she nonetheless returned to
school the following day after receiving a statement from President Biya's
government indicating that those who did not return would suffer further sanctions.
When she returned to school, Esaka noticed that several of her classmates were
curiously absent. Esaka heard reports that some students were forcibly removed from
their homes by the Cameroon military. Due to the instability in the country, Esaka
fled Cameroon with her brother to pursue her studies in the United States.
In 1987, Esaka was granted entry into the United States as a nonimmigrant
student and soon joined the Cameroon Student Association (CAMSA). As a member
of CAMSA, Esaka claimed to have participated in various anti-government
demonstrations in the United States and asserted that President Biya's government
had declared CAMSA a subversive group. Furthermore, Esaka asserted that President
Biya issued warrants for the arrest of all CAMSA members and arrested, imprisoned,
tortured, and/or killed many students upon their return to Cameroon.
While in the United States, Esaka also joined the Social Democratic Front
(SDF) and participated in its meetings and paid dues until 1995. According to Esaka,
her parents' government benefits were cut and their pay withheld in 1988 as the
economic situation in Cameroon worsened. Esaka claimed that she discontinued her
studies and sought employment without the permission of the United States
Government because she could no longer afford to pay tuition.
In addition to her claimed personal persecution, Esaka asserted that members
of her family suffered political persecution in her absence. Specifically, she alleged
that President Biya's government summarily shot and killed two of her cousins during
a protest in 1991. Esaka's mother produced death certificates of Esaka's deceased
cousins from Cameroon. However, in response, the government produced evidence
showing the certificates to be fakes. According to Esaka, one of her uncles, a leader
in the SDF, was frequently arrested, had his businesses burned down by the
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government, suffered beatings to the soles of his feet, and eventually went into
hiding. Another uncle, an active member of the SDF, was similarly arrested, beaten,
and tortured before he also went into hiding. In 1998, Esaka's father returned to
Cameroon. Esaka's mother returned to Cameroon some time later.
On January 22, 1991, proceedings for deportation against Esaka commenced.
An order to show cause was filed, charging Esaka with deportability for failing to
maintain her student status and obtaining employment in the United States without
permission. Esaka failed to appear at her hearing and was ordered deported in
absentia. On February 18, 1992, Esaka filed an administrative asylum application
with the Immigration and Naturalization Service and appeared for an asylum hearing
on April 24, 1996. At the hearing, Esaka was arrested under the prior order of
deportation. However, her deportation was stayed and the case reopened.
At a master calendar hearing on July 29, 1997, Esaka, represented by counsel,
conceded her deportability. Nonetheless, Esaka sought asylum, withholding of
removal, suspension of deportation, and voluntary departure. An IJ conducted a
hearing wherein Esaka submitted evidence. The IJ denied Esaka asylum, withholding,
and suspension, but granted her voluntary departure. Esaka appealed the decision to
the BIA, which summarily denied her relief and ordered deportation or voluntary
departure. Esaka then filed the instant action as a petition for review.
II. Discussion
The BIA adopted the IJ's adverse credibility finding and ruled that Esaka failed
to meet her burden of proof. When the BIA summarily adopts an IJ's decision without
adding further reasoning, we limit our review to the decision produced by the IJ. See
Hassanein v. Ashcroft, 380 F.3d 324, 327–28 (8th Cir. 2004).
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A. Adverse Credibility Finding
The thrust of Esaka's argument is that the IJ improperly determined her
credibility. We defer to an IJ's negative credibility finding where it is "supported by
a specific, cogent reason for disbelief." Hassanein, 380 F.3d at 327–28. "[B]ecause
the [IJ] is in the best position to evaluate an alien's testimony, his or her credibility
determinations are to be given much weight." See Perinpanathan v. I.N.S., 310 F.3d
594, 597 (8th Cir. 2002) (citing Estrada v. I.N.S., 775 F.2d 1018, 1021 (9th
Cir.1985)).
The IJ first noted that Esaka resorted to misrepresentation when she considered
it to be in her interest to do so. Specifically, she misrepresented her immigration
status to employers in order to gain unauthorized employment. The IJ then examined
Esaka's historical account of her persecution in Cameroon. The IJ noted discrepancies
between Esaka's hearing testimony and her written application for asylum. In her
application for asylum, she failed to mention that she had been beaten while detained.
In Esaka's later testimony, however, she claimed to have been beaten with a bamboo
cane and a belt, and kicked several times. Esaka explained that the discrepancy arose
out of the translation of her handwritten statement into a typed statement. The IJ
found the explanation "shaky" remarking that she signed the type-written document
and was educated in the English language. The IJ then turned to Esaka's explanation
of her detention and escape after a purported arrest for protesting President Biya's
government. The IJ disbelieved Esaka's claim that she escaped from a guarded
detention facility by climbing over barbed wire with ropes made from T-shirts and
bras. The IJ was particularly critical of Esaka's claim that her escape was not
hampered by the guards. The IJ added that Esaka's stories changed and that she gave
different descriptions of the wall she escaped over.
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The IJ found "most damaging" Esaka's submission of fake death certificates for
her cousins.1 After receiving the death certificates of Esaka's two cousins, the
government sought to authenticate the documents by having the United States
Embassy in Yaounde conduct an investigation. That investigation revealed that the
death certificates were not authentic. In addition, the court noted that the death
certificates were obtained by Esaka's mother who was formerly employed at the
hospital purportedly issuing the certificates. The IJ noted inconsistencies in Esaka's
mother's account of how she received the death certificates that further cast doubt on
their authenticity.
An immigration judge can base a credibility determination on the lack of
corroborating evidence if the judge also encounters inconsistencies in testimony,
contradictory evidence, or inherently improbable testimony. Zewdie v. Ashcroft, 381
F.3d 804, 808 (8th Cir. 2004). In this case, Esaka's evidence suffered from
inconsistencies. For example, her testimony about the circumstances of her departure
were inconsistent and not credibly explained. In addition, the death certificates used
to support her family persecution claims were determined to be fake and there were
inconsistencies regarding the origin of the fake documents. The IJ, who watched
Esaka give her testimony, was within his discretion to disbelieve her escape account
given the improbabilities of its details.
Esaka points this court to Zewdie, 381 F.3d at 809, where we explained that as
long as an "applicant's testimony is generally consistent, rational, and believable,"
inconsistencies in the testimony "need not be fatal to credibility, especially if the
1
Esaka contends that the IJ violated her due process rights by allowing the
government to submit evidence that the death certificates provided were fraudulent.
Esaka failed, however, to make this argument to the BIA. We lack jurisdiction to hear
a claim that an alien fails to raise before the BIA in the first instance. Gebremaria v.
Ashcroft, 378 F.3d 734, 736 n.4 (8th Cir. 2004).
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errors are relatively minor and isolated." (quotations omitted). In Zewdie, we
explained that a petitioner's failure to mention beatings to an asylum officer or
indicate them on her asylum application should not be conclusive as to her credibility,
given the obvious translation difficulties revealed in the record. Id. In this case,
however, there is no issue of translation difficulties; rather, it is clear that as an
Anglophone, Esaka is educated in the English language. Likewise, in Hassanein v.
Ashcroft, 380 F.3d 324 (8th Cir. 2004), we upheld an adverse credibility finding
where the petitioner lied several times in connection with an application for
adjustment of status, misrepresented to the Immigration and Naturalization Service
the death of his father, and gave testimony regarding membership in the Socialist
Labor Party that was inconsistent with a specific question asked on his application.
Id. Here, Esaka misrepresented her immigration status to gain unlawful employment,
misrepresented the death of her two cousins, and gave testimony of persecution that
was inconsistent with her application for asylum.
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." Kondakova
v. Ashcroft, 383 F.3d 792, 796 (8th Cir 2004) (citations omitted). In Esaka's asylum
application, she left out the fact that she had been beaten while she was detained.
Esaka's claim of asylum is predicated on the fact that she was beaten and it clearly
relates to the "heart of her asylum claim." We hold that the IJ made the adverse
credibility findings based on specific, cogent reasons.
Under the Immigration and Nationality Act, the attorney general has the
discretion to grant asylum to a refugee, defined as 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 political social
group, or political opinion." 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). "In most cases,
the critical inquiry is whether the applicant has a well-founded fear of future
persecution upon return to his or her country." Perinpanathan v. I.N.S., 310 F.3d 594,
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597–98 (8th Cir. 2002) (citation omitted). The applicant must demonstrate a fear that
is subjectively genuine and objectively reasonable. Id. For an alien's fear of
persecution to be objectively reasonable, the fear must have basis in reality and must
be neither irrational nor so speculative or general as to lack credibility. 8 U.S.C. §
1101(a)(42)(A). "The applicant is entitled to a presumption of a well-founded fear of
future persecution if past persecution is established, and the burden then shifts to the
INS to show by a preponderance of the evidence that 'conditions in the applicant's
country . . . have changed to such an extent that the applicant no longer has a well-
founded fear of being persecuted if he or she were to return.'" Id. (citing Cigaran v.
Heston, 159 F.3d 355, 357 (8th Cir.1998)). Esaka must demonstrate that her evidence
"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. 478, 483-84 (1992).
Esaka failed to meet her burden of proof because the IJ found her asylum
claims lacked credibility. When Esaka failed to demonstrate that she was eligible for
asylum, she consequently also failed to meet the higher burden of proof required for
obtaining withholding of removal. Krasnopivtsev v. Ashcroft, 382 F.3d 832 (8th Cir.
2004).
B. Convention Against Torture
Esaka also seeks reversal on her claim under the United Nations Convention
Against Torture (CAT). Article 3 of the CAT establishes that "it shall be the policy
of the United States not to expel, . . . or otherwise effect the involuntary return of any
person to a country in which there are substantial grounds for believing the person
would be in danger of being subjected to torture." To receive protection under the
CAT, Esaka must show that she is more likely than not to suffer torture if returned to
Cameroon. See 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. Sivakaran v. Ashcroft, 368 F.3d 1028, 1028–1029 (8th Cir. 2004).
However, an IJ can properly consider a claimant's discounted credibility when
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determining whether he or she will be subjected to torture. Hassan v. Ashcroft, 388
F.3d 661, 668 (8th Cir. 2004). A denial of relief under the Convention Against
Torture is reviewed to determine whether the evidence was so compelling that a
reasonable factfinder must have found the alien entitled to relief. Ngure v. Ashcroft,
367 F.3d 975 (8th Cir. 2004).
The code requires the IJ to consider testimony of the applicant as to past
torture, the possibility of relocation within the country, mass violations of human
rights, or other relevant information regarding conditions within the country. 8 C.F.R.
§ 208.16(c)(3). Esaka relies solely on evidence that demonstrates the general dangers
present in Cameroon. She notes newspaper articles indicating that protesters are
beaten, imprisoned, and murdered. She also submitted a summons for her issued in
November of 1987. Torture is defined as an act by which severe pain or suffering,
whether physical or mental, is intentionally inflicted, and it is an extreme form of
cruel and inhuman treatment; it does not include lesser forms of cruel, inhuman, or
degrading treatment. 8 C.F.R. § 208.18(a)(1), (2).
Esaka's claim lacks credible evidence of past torture as defined by the code.
Presenting evidence of general conditions is insufficient to establish that one is more
likely than not to suffer torture. Esaka has failed to establish that it is more likely than
not that she would be tortured if she returned to Cameroon. See Zakirov v. Ashcroft,
384 F.3d 541, 547 (8th Cir. 2004).
For the foregoing reasons, we deny Esaka's petition for review.
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