Judith Ntangsi v. Alberto Gonzales

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-4220
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Judith Phuobong Ntangsi, *
*
Petitioner, *
* Petition for Review of an Order of the
v. * Board of Immigration Appeals.
*
Alberto Gonzales, Attorney General *
of the United States of America, *
*
Respondent. *
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Submitted: October 18, 2006
Filed: January 30, 2007
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Before MELLOY, BENTON, and SHEPHERD, Circuit Judges.
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MELLOY, Circuit Judge.
Judith Phuobong Ntangsi, a native and citizen of the Republic of Cameroon,
applied for and was granted asylum by an Immigration Judge (“IJ”) in 2001 because
he found that Ntangsi possessed a well-founded fear of persecution by Cameroonian
officials on account of her political beliefs. The government subsequently
investigated the factual allegations underlying her asylum claim and found some
grounds to doubt the veracity of her testimony regarding her father and his political
activities. Upon the government’s motion, the IJ reopened her case and offered
Ntangsi time to submit additional evidence, but he denied her requests to allow
telephonic testimony of her own witnesses and to telephonically cross-examine the
government’s overseas investigator. The IJ found that the new evidence, combined
with a lack of adequate corroborating evidence of other allegations of her claim, raised
serious concerns about Ntangsi’s credibility. He therefore denied her claims for
asylum, withholding of removal, and relief under the Convention Against Torture, and
the Board of Immigration Appeals (“the Board”) affirmed the decision. Ntangsi
petitions this court for review of the denial of her application for asylum. We grant
the petition.
I. BACKGROUND
A. Initial Asylum Hearings
Ntangsi arrived at the Miami International Airport in August of 1999 without
proper documentation for entry into the United States. Customs officials detained and
interviewed her, and they found that she had a credible fear of persecution upon return
to her homeland. She applied for asylum, withholding of removal, and relief under
the Convention Against Torture. In November of 2000, following a transfer of venue
to Bloomington, Minnesota (where Ntangsi had nearby relatives with whom she could
stay), the IJ held a hearing on the merits. Ntangsi was the only witness at the hearing,
and the substance of her testimony and accompanying evidence appears below.
Ntangsi was born in Cameroon in 1974. She grew up and attended secondary
school in the English-speaking Southwest Province, a part of the former British
Cameroon prior to its 1961 merger with French Cameroon. She testified that her
father, Fidelis Ntangsi (“Fidelis”), was a founding member of the Social Democratic
Front (“SDF”). The SDF is a political party formed in 1990 to protect the rights of
Cameroonian Anglophones (a minority in Cameroon) and oppose the political
dominance of the country’s ruling party, led since 1982 by Francophone President
Paul Biya. Fidelis was arrested several times on account of his political activities.
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Ntangsi testified that Fidelis lost his job at the Cameroon Development Corporation
because of his SDF activities following an arrest in 1996, but that the government had
now ceased its harassment of her father and he was currently working as a farmer.
Ntangsi also testified that she has two sisters in the United States. Her older sister,
Marie, was granted asylum on the basis of political persecution and lives in the Twin
Cities. Her younger sister, Chantal, was seeking asylum on the same basis at the time
of the hearing.
Ntangsi claimed that she also became an active member of the SDF. She
enrolled in the University of Buea in 1995 and attended several SDF rallies. In 1997,
she formally joined the party by paying a small fee. She also became the publicity
secretary for an SDF student organization, with responsibility for announcing events,
distributing literature, and speaking at general meetings of the group’s 200 members
and occasionally at rallies of 500 people or more. Days before the 1997 presidential
election in Cameroon, Ntangsi attended a pre-election rally organized by the student
group. Police raided the event, subjecting the students to tear gas and beatings.
Ntangsi and some fifty to eighty of the other attendees were imprisoned for four days,
including the day of the election.1 Prison conditions were poor, and the students were
beaten and forced to perform hard labor. One guard attempted to rape Ntangsi before
the guard’s commanding officer intervened. Ntangsi suffered substantial swelling on
her body, and after her release from prison she received medical care from a family
friend who worked as a nurse.
Despite this incident, Ntangsi testified that she continued her involvement in
SDF-related activities. In April of 1999, she co-authored an editorial with the other
four officers of the SDF student group. They published it in the local edition of the
1
Biya won the election with more than ninety percent of the vote. The 1999
State Department Report on Human Rights Practices noted that the election was
“marred by a wide range of procedural flaws, and generally considered by observers
not to be free and fair.”
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Cameroon Post—one of the country’s leading newspapers—and Political Punch, a
national magazine. In June of that year, Ntangsi left campus for a short time to stay
in the city of Limbe. When she returned, neighbors told her that police had arrested
three of the officers of the SDF student group and taken them to prison in Yaoundé,
the national capital. Ntangsi also heard a rumor that one of the officers had died. She
had no knowledge of whether any of them were ever released. Ntangsi left for Limbe
again, and she returned in July to learn that police had left a convocation, or form of
summons to appear, with her neighbors. The document ordered Ntangsi to report to
the prison in Yaoundé.
Ntangsi immediately fled to Limbe. She stayed there for two days before a
family friend, Patrick Yufenyi, transported her to an island off the coast of Cameroon.
Yufenyi apparently applied for a passport for Ntangsi without her knowledge, and he
returned to the island one month later with the official passport in hand. They left the
island for Douala, where Yufenyi had arranged for Ntangsi’s air travel out of
Cameroon. Ntangsi’s flight took her to Paris, then to Miami, where her involvement
with U.S. immigration officials began.
After listening to Ntangsi’s testimony at this initial merits hearing, the IJ
continued the case to allow the parties time to submit evidence either corroborating
or discrediting three aspects of Ntangsi’s claim: (1) her and her family’s role and
activities in the SDF; (2) the editorial she co-authored with other SDF student officers
shortly before she was ordered to report to prison; and (3) the arrest of other SDF
student officers and the rumored death of one of those officers.
After another continuance at the government’s request, the IJ held a hearing in
August of 2001. At that hearing, the government argued that it needed an indefinite
amount of time to await the results of a State Department investigation into Ntangsi’s
factual allegations and a forensic lab report on the legitimacy of certain documents.
The IJ opted to rule on Ntangsi’s application for asylum. He noted that her exhibits—
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including statements to immigration inspectors, the application for asylum, documents
related to her credible-fear screening, copies of her SDF membership cards and the
convocation for her arrest, photographs of her injuries subsequent to her arrest, other
identification documents, Cameroon country reports, and Marie’s application for
asylum—were generally consistent with Ntangsi’s testimony. The IJ expressed some
concerns regarding Ntangsi’s credibility, particularly the legitimacy of the
photographs and the lack of strong corroborating evidence of her role in the SDF.
Nevertheless, he found that she was generally credible and gave weight to her
testimony. As to her claim, he found that her prior arrest constituted past persecution
on a protected ground, entitling her to a presumption of a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b)(1). The IJ also stated that Ntangsi would have met
her burden of showing a well-founded fear of future persecution even without the
benefit of that presumption. Therefore, he granted Ntangsi’s application for asylum.
After announcing the order, the IJ informed Ntangsi that the government was
“still investigating the case. If it turns out that any of the claims that you have
advanced are fabricated, your case is going to be back here in court, and you’re going
to have to explain what’s going on.”
B. Reopening of Ntangsi’s Case
Eighteen months later, the IJ followed through on this warning. He granted the
government’s motion to reopen the case on February 19, 2003, after the government
submitted evidence that Fidelis Ntangsi had not been fired by the Cameroon
Development Corporation for political reasons. A State Department investigation
found that the Corporation had instead only demoted him, although the State
Department also found that the reason for the demotion was indeed Fidelis’s political
beliefs and that Fidelis did in fact work on a farm.
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The IJ held a hearing in May, and he granted Ntangsi’s motion for a
continuance to review the government’s new evidence and submit her own in
response. Ntangsi also asked for an opportunity to cross-examine the State
Department investigator, arguing that cross-examination was particularly crucial in
her case because the Third Circuit had recently ruled that an investigative report
submitted by the U.S. Embassy in Cameroon in a different asylum case was so
unreliable that the Board violated the alien’s due process rights by relying upon it.
Ezeagwuna v. Ashcroft, 325 F.3d 396, 406-08 (3d Cir. 2003). The IJ noted this case,
but stated that Third Circuit authority did not bind his decisions, he had no subpoena
power over a foreign investigator, and Ntangsi would have to discuss that matter with
the State Department. Ntangsi also asked the IJ to allow the telephonic rebuttal
testimony of Fidelis, at Ntangsi’s expense, to be taken from the U.S. Embassy in
Cameroon. The IJ agreed, stating that such a procedure was “fine, if you can provide
sufficient assurances that we know that the person on the other end of the phone is
who it’s supposed to be” and that “[g]oing to a consular or an embassy would be the
normal way to do that.”
Following this hearing, Ntangsi formally moved to allow the telephonic
testimony of Fidelis Ntangsi and Ngomanji Emmanuel, an administrative officer of
the SDF. The IJ did not rule on the motion before Ntangsi’s next hearing in October
of 2003. At that hearing, Ntangsi renewed her request to allow her father and
Emmanuel to testify by telephone. The IJ refused: “I’m not eager to try to do
telephonic testimony for witnesses who are not in court, who I’ve had no real prior
dealings with, and particularly when coming from a foreign country, it’s very hard.”
In addition, he noted that Ntangsi had already submitted affidavits from these
individuals. By refusing to allow telephonic testimony of any witnesses, he stated that
the government could not cross-examine Ntangsi’s affiants and Ntangsi could not
cross-examine the government’s investigator, “so you’re basically on the same
footing.” Ntangsi objected to the exclusion of live testimony from these witnesses.
She also asked the IJ to draw a negative inference with regard to the credibility of the
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government investigator’s report because the government had declined requests to
make the investigator available for cross-examination. The IJ noted the objection and
request for a negative inference, but he did not rule upon them. After this discussion,
neither side called any witnesses, and both rested upon the record in the case.
C. Decisions of the IJ and the Board
The IJ issued a new decision in the case on July 23, 2004. In the written
decision, he said he “gave the respondent the benefit of the doubt previously,” but that
the basis for that benefit—the fact that the government presented no evidence to
dispute her allegations—disappeared when the subsequent government investigation
produced evidence that contradicted some of her testimony. Therefore, he found that
her claim was not credible. Upon consideration of the results of the investigation and
“the lack of really solid, contemporaneous corroboration of the core elements” of
Ntangsi’s alleged persecution, the IJ denied her applications for asylum, withholding
of removal, and relief under the Convention Against Torture.
Ntangsi appealed to the Board, arguing that (1) the IJ erred in his adverse
credibility finding and denial of asylum relief to Ntangsi, particularly after he had
previously found Ntangsi credible and eligible for relief; (2) the IJ abused his
discretion and violated Ntangsi’s due-process rights by failing to allow the telephonic
testimony of Fidelis Ntangsi and Ngomanji Emmanuel; and (3) the IJ abused his
discretion and violated Ntangsi’s due-process rights by relying upon the investigator’s
report and failing to draw a negative inference as to its reliability, based on the fact
that the government refused to make him available for cross-examination. The Board
rejected these claims, ruling that the IJ was justified in relying upon the investigator’s
report and in making an adverse credibility finding, given the inconsistency between
Ntangsi’s testimony and the later-discovered evidence relating to her father. It also
ruled that the IJ’s refusal to admit the telephonic testimony was not reversible error
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because there was no indication that it “would have materially benefitted this case or
changed its outcome.”
Ntangsi now appeals to this court, raising the same arguments she made before
the Board. She did not appeal the decision to reopen her case to the Board or to this
court in her opening brief; she appeals only the subsequent procedural rulings and
ultimate denial of her asylum claim.
II. DISCUSSION
We review the Board’s factual findings for substantial evidence and its legal
determinations de novo. Phommasoukha v. Gonzales, 408 F.3d 1011, 1014 (8th Cir.
2005). “We review constitutional challenges to immigration proceedings de novo.”
Shoaira v. Ashcroft, 377 F.3d 837, 842 (8th Cir. 2004).
When the government succeeds in reopening the proceedings of alien who was
previously granted asylum, it carries the burden of proving—by a preponderance of
the evidence— one of several grounds for terminating asylum. 8 C.F.R. § 208.24(f).
Under that regulation and its related statute, 8 U.S.C. § 1158(c)(2), the only plausible
ground for terminating Ntangsi’s asylum in this case would have been “a showing of
fraud in the alien’s application such that he or she was not eligible for asylum at the
time it was granted.” 8 C.F.R. § 208.24(a)(1), (f). The failure to place this burden
upon the government is reversible legal error. See Hailemichael v. Gonzales, 454
F.3d 878, 885 (8th Cir. 2006).
After examining the record of the reopened proceedings in this case, it is clear
that neither the IJ nor the Board placed the burden of proving fraud upon the
government. Instead, the language of the written decisions by both the IJ and the
Board shows that they placed the burden on Ntangsi to prove her asylum eligibility
anew upon the reopening of her case. The terms of 8 C.F.R. § 208.24(f) make it clear
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that the government is not relieved of its burden of proving fraud by a preponderance
of the evidence merely because it makes a showing sufficient to reopen a proceeding.
Compare 8 C.F.R. § 1003.23(b)(3) (“A motion to reopen will not be granted unless
the Immigration Judge is satisfied that evidence sought to be offered is material and
was not available and could not have been discovered or presented at the former
hearing.”) with 8 C.F.R. § 208.24(f) (“In such a reopened proceeding, the Service
must establish, by a preponderance of evidence, one or more of the grounds [for
terminating asylum].”); see also Hailemichael, 454 F.3d at 883 (holding that the
language of 8 C.F.R. § 1003.23(b)(3) (formerly 8 C.F.R. § 3.23(b)(3)) applies to
motions to reopen for the purpose of terminating asylum).
Under the facts of this case, we cannot say that the failure to apply the proper
burden of proof in Ntangsi’s reopened proceeding was harmless. In Hailemichael, we
noted that the government cannot meet its burden of proving fraud unless it can show
that the petitioner knows the statement or document is fraudulent at the time she
presents such evidence to the IJ. Hailemichael, 454 F.3d at 885. Neither the IJ nor
the Board addressed the issue of whether Ntangsi knew that her testimony was false
with regard to her father’s employment status.2 Indeed, Ntangsi actually came
forward with evidence that her testimony was accurate and truthful at the time; that
is, that her father was fired and later reinstated in a lesser position with the
Corporation after union negotiations. Because the IJ and the Board never considered
whether the preponderance of all the evidence regarding Fidelis’s employment
favored a finding of fraud, we must remand to the Board to apply the proper standard
for terminating asylum under 8 C.F.R. § 208.24. To terminate Ntangsi’s prior grant
of asylum in these remanded proceedings, the government must prove, by a
2
The IJ did note that Ntangsi’s sister listed her father’s work address at the
Cameroon Development Corporation in a 1999 application for an immigrant visa.
There was no showing, however, that her sister had full knowledge of her father’s
employment status at the time or that she shared this knowledge with Ntangsi prior to
Ntangsi’s 2000 hearing.
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preponderance of the evidence, that: (1) Ntangsi committed fraud in her asylum
application, 8 C.F.R. § 208.24(a)(1); (2) she knew of the fraud, Hailemichael, 454
F.3d at 885; and (3) the fraud was “such that . . . she was not eligible for asylum at the
time it was granted.” 8 C.F.R. § 208.24(a)(1).
Because we find the above grounds sufficient to grant the petition, we need not
reach the constitutional issues raised by the IJ’s reliance upon the government
investigator’s report without opportunity for telephonic cross-examination, as well as
the IJ’s refusal to permit the telephonic testimony of Ntangsi’s witnesses.
III. CONCLUSION
For the foregoing reasons, we grant the petition for review.
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