Ndonyi, Pauline v. Holder, Eric H.

In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3196

P AULINE N DONYI,

Petitioner,

v.

M ICHAEL B. M UKASEY, Attorney General

of the United States,

Respondent.

____________

Petition for Review of an Order of the

Board of Immigration Appeals.

No. A78-674-466.

____________

A RGUED JUNE 5, 2008—D ECIDED S EPTEMBER 2, 2008

____________

Before P OSNER, K ANNE, and S YKES, Circuit Judges.

K ANNE, Circuit Judge. Pauline Ndonyi, a native and

citizen of Cameroon, petitions for review of an order of

removal entered by Immigration Judge Jennie L.

Giambastiani (IJ), which became final when the Board of

Immigration Appeals (BIA) dismissed Ndonyi’s appeal.

The IJ and the BIA both concluded that the harsh treat-

ment Ndonyi suffered in Cameroon was not on account

2 No. 07-3196

of her political, religious, or social affiliations, and denied

her application for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT).

Because the IJ and the BIA failed to properly analyze the

nexus between the persecution faced by Ndonyi and her

political and religious beliefs, we grant the petition for

review and remand the case for further proceedings.

I. H ISTORY

In May 2000, Pauline Ndonyi entered the United States

at Detroit, Michigan, by crossing the border in a Canadian

family’s car. The agent at the border station checked only

the driver’s passport, and waived the car through the

border; as a result, Ndonyi entered the United States

undetected. In December 2000, Ndonyi, who was not

yet in removal proceedings, filed an application for

asylum, withholding of removal, and CAT protection,

because she claimed to have suffered persecution as a

result of her political activities and her father’s leadership

in the Cameroon Baptist Convention (“CBC”), a Baptist

Christian organization. Ndonyi’s application detailed

that “[i]n January 1999, [she] was tortured and raped by

the government police and military for expressing [her]

political opinion.” The application also stated that “in

September 1999, [she] was forced to watch [her] father

being tortured for his involvement with the Church,” and

that “[she] and [her] mother both were tortured for

trying to come to his defense.” Ndonyi’s application

claimed that, based on her past experience, she feared

being “tortured and killed” if she returned to Cameroon.

No. 07-3196 3

An asylum officer interviewed Ndonyi, see 8 C.F.R.

§ 1208.9, and after determining that she was inadmissible,

the officer referred Ndonyi’s application to the Executive

Office of Immigration Review, see id. § 1208.14(c)(1). The

government then initiated removal proceedings against

Ndonyi in early February 2001 for being illegally present

in the United States. See 8 U.S.C. § 1182(a)(6)(A)(i).

In September 2002, Ndonyi appeared with counsel at a

hearing before the IJ. Ndonyi, a native English speaker,

testified that she is a member of the Kom tribal group,

an ethnic group located in the English-speaking

northwest province of Cameroon. Ndonyi explained that

French and English are the two official languages of

Cameroon, but that French is the more prevalent

language and English speakers, or “Anglophones,” are

often treated as second-class citizens.

Ndonyi stated that for two years, beginning in 1997, she

attended the University of Yaoundé (“University”), which

is located in a French-speaking part of the country. Accord-

ing to Ndonyi, the University discriminated against its

Anglophone students by omitting their names from

student lists; barring them from participation in sports

and extracurricular activities; relegating them to dirty,

substandard housing; and neglecting to grade their aca-

demic papers or record their course grades—which

resulted in the students failing to receive proper credit

for courses they completed and prevented their advance-

ment to higher grade levels. In response to the University’s

discriminatory policies, English-speaking students

formed the Northwest Students Association (“NSA”), an

4 No. 07-3196

organization of a few hundred members that attempted

to vindicate the interests of the school’s Anglophone

students by conducting peaceful demonstrations, boycotts

of classes, and strikes targeted at school administrators.

Although the NSA regularly posted fliers and engaged

in protests during Ndonyi’s two years at the University,

the school administration did not permit the NSA to

function in the school, so members met secretly,

and their actions were met with resistance from school

officials.

Ndonyi joined and actively participated in the NSA

while at the University. Ndonyi testified that in mid-

January 1999, she and other NSA members engaged in a

peaceful “strike” in front of the University’s administra-

tion building when school administrators called the

police. The police arrived in trucks, and were armed

with guns and clubs. Ndonyi explained that the police

told the students that the students were disturbing the

peace, and that the police were going to “teach them a

lesson” for their disruptive behavior. The police beat

the students with the clubs and pushed the students

into the trucks.

Ndonyi recounted how the police then took the students

to the police station, where they separated the male

students from the female students. Ndonyi and the other

female students were forced into a “nasty looking” cell.

Police officers entered the cell, and kicked and beat

Ndonyi and the other female students with clubs. During

this incident, two officers held her down while other

officers took turns raping her. The other girls in the room

No. 07-3196 5

were also raped by the police. The students were held

overnight and released the next morning without being

charged with any offense. N d o n y i t e s t ifie d t h at u p o n

her release from the prison, she went to the hospital to

obtain treatment for her injuries, but did not report the

episode to other authorities. A close friend of Ndonyi’s,

Rosalyina Disango, died as a result of the incident. Ndonyi

became angry when Rosalyina’s death was misreported

as a suicide, and as a result, Ndonyi attempted to

contact members of the press to have the true story of her

friend’s death published. The government discovered

Ndonyi’s efforts to contact the press and summoned her

to the police station in late January 1999. Ndonyi did not

report to the station and instead fled 420 miles to her

home province.

Ndonyi explained that upon arriving in the northwest

province, she did not go directly to her parents’ home in

Mabingo, but instead stopped in another town 30 miles

away because “the situation at home . . . was also bad.”

Since 1994, there had been hostility toward her family

in her home province because her father was the chair-

man of the CBC. Ndonyi’s father and her family faced

backlash after her father refused to “break away” from the

church and join a splinter group—the Cameroon

National Baptist Christian Convention (“CNBC”), which

objected to how the CBC spent church funds. The CBC and

CNBC members attended the same church, which led to

social hostilities directed at CBC members—including

name-calling, shunning, and stone throwing. Ndonyi’s

father’s attempt to inform the authorities about the op-

pressive actions of CNBC members fell on deaf ears

because the authorities were affiliated with the CNBC.

6 No. 07-3196

After a few weeks in the nearby village, Ndonyi re-

turned to her parents’ home. Ndonyi’s initial hesitation

to returning home proved warranted—from February until

September 1999, her family was under de facto house

arrest: “[W]e couldn’t go out . . . we were being stoned,

called names. They wouldn’t . . . even interact with us. So

basically we just stay[ed] home.” Ndonyi also detailed

that CNBC members left letters tacked to her family’s

front gate threatening to burn down their home because

of her father’s continued allegiance to the CBC.

The efforts by Ndonyi’s father to publicize the family’s

plight exacerbated the situation. In early September 1999,

Ndonyi’s father was arrested for writing a letter to gov-

ernment officials in the Cameroonian Senate, discussing

how the local government supported the CNBC instead

of neutrally resolving the dispute between the two

Baptist sects. The letter brought no response; Ndonyi

speculated that the politicians were silenced because the

political landscape was dominated by French speakers,

who advanced their own agendas and causes. The local

officials branded Ndonyi’s father a “traitor” and a trouble-

maker, and arrested him for going over their heads to the

higher authorities.

Two weeks later, the entire Ndonyi family, along with

other CBC members, was arrested and “locked up” by

uniformed police. The family was taken to a maximum

security prison in Bamenda, where local officials at-

tempted to get Ndonyi’s father and other CBC members

to sign documents that stated they would “stop” opposing

the CNBC. Several CBC members signed the forms and

No. 07-3196 7

were released, but Ndonyi’s father refused to sign, and

the family was detained for two weeks. During the two-

week imprisonment, the police tortured Ndonyi’s father

in front of the entire family—four officers took him out

of his cell, hung him from handcuffs placed around metal

bars on a wall, and then beat his legs and body with clubs.

The officers told the family that this should be a “lesson”

to them. When her father began to pass out, Ndonyi

could no longer stand idly by—she jumped on top of one

of her father’s assailants and was bludgeoned in the

head with the butt of a rifle.

When Ndonyi awoke, she was being treated by one

of her father’s supporters, and was informed that her

family had been released. Ndonyi’s family had returned

to their home in Mabingo, where CNBC members contin-

ued to intimidate and socially censure them and the

other CBC members. Ndonyi explained that her family

returned to Mabingo because it was unlikely that the

English-speaking family could find work or get an educa-

tion in the French-speaking parts of Cameroon. Ndonyi

did not want to witness her family subjected to discrim-

ination in Mabingo, so instead of returning home, she

traveled 60 miles to another town, Baffouse, where she

stayed with her father’s supporters. While in Baffouse,

Ndonyi learned that two military officers had shown

up at her parents’ home and asked for her whereabouts.

When her mother refused to tell the officers where

Ndonyi was, she was badly beaten.

Ndonyi lived in Baffouse for six months when she

decided to leave Cameroon. Ndonyi obtained documenta-

8 No. 07-3196

tion and a fraudulent passport from a friend, and

traveled to Canada on another woman’s business visa.

About one week later, Ndonyi crossed the border into

the United States. Once in the United States, Ndonyi

began attending a nursing program at a technical college

in Madison, Wisconsin. At one point, Ndonyi attempted

to transfer her school credits over from the University of

Yaoundé, but the school had no records of Ndonyi: “[it

was] like I didn’t even exist . . . in the school. They couldn’t

find any records for my name.”

Ndonyi also testified that, in June 2001, she discovered

that her father had passed away under suspicious cir-

cumstances. She explained that her family still faced

persecution from the CNBC and police at the time of her

immigration hearing. And she said that she would not

return to Cameroon for fear of being raped, tortured, or

arrested, because her family no longer has income after

her father’s death, and because she will be a victim of

torture for her support of English-speaking causes.

After Ndonyi completed her testimony on direct exami-

nation, the IJ continued the hearing twice, and ultimately

rescheduled cross-examination for early December 2003.

During the intervening fifteen months, Ndonyi’s counsel

withdrew. As a result, Ndonyi represented herself at the

December 2003 hearing. On cross-examination, the gov-

ernment’s attorney asked Ndonyi about the rallies and

protests she participated in while part of the NSA, and the

number of students involved with the group. Ndonyi

related consistent stories about the January 1999 protest

and her rape and torture in its aftermath, and about her

No. 07-3196 9

family’s membership in the CBC and the December 1999

incident.

However, the government’s attorney also elicited

several numerical estimates from Ndonyi that differed

from those she had testified to more than a year earlier

on direct examination. For example, on cross-examination

Ndonyi estimated that the NSA had only 200 members

(instead of 400), that she participated in five rallies (not

ten), and that only 50 to 100 students protested in

January 1999 (as opposed to 200). Ndonyi explained that

the specific figures she gave might be inaccurate because

she did not pay close attention to details and was

merely estimating.

In addition to Ndonyi’s testimony, the record before

the IJ consisted of, among other things: (1) an affidavit

from an American missionary in Cameroon regarding

Ndonyi’s father’s activities in the CBC; (2) the State Depart-

ment’s 2001 and 2002 Country Reports on Human Rights

Practices in Cameroon; (3) an editorial regarding the

religious conflict that Ndonyi’s father published in a

national newspaper; (4) a medical certificate from

Ndonyi’s hospital visit in January 1999; (5) Ndonyi’s

father’s obituary; and (6) a threatening letter that CNBC

members sent to Ndonyi’s father. The missionary’s affida-

vit stated that “the Ndonyi family suffered more persecu-

tion than most families loyal to the CBC . . . because

Pauline Ndonyi’s father was a leader in the CBC

church . . . and he openly . . . reported the activities of

dissidents to the CBC authority.” The missionary further

explained that Ndonyi’s father’s affiliation with the CBC

10 No. 07-3196

“prevented them from worshipping in their local

church . . ., ostracized them from local civic and religious

functions, and maligned them in public gatherings.” The

State Department reports confirmed that “natives of the

two Anglophone provinces, the Northwest and Southwest

Provinces . . . have suffered disproportionately from

human rights violations committed by the Government

and its security forces.” The reports elaborated that

Anglophones are “largely underrepresented in the

public sector,” and “generally believed that they had

not received their fair share of public goods and services.”

The IJ reviewed the record and rendered an oral

decision on December 8, 2003, the same day that Ndonyi

testified on cross-examination. The IJ first found that

Ndonyi was not credible due to “several discrepancies”

between her testimony on direct examination and her

cross-examination testimony, given more than a year

later. The IJ noted several differences, including the

number of protests Ndonyi claimed to have participated in,

the number of NSA members that Ndonyi cited, the

number of students who participated in the NSA protest

and were arrested in January 1999, and the number of

trucks the police arrived in to arrest the students. The IJ

explained that despite Ndonyi’s confession that she did not

pay close attention to detail, “the numbers [were] signifi-

cant.” The IJ also stated that Ndonyi was not credible

because she had testified “on direct examination . . . that

when she fought with the soldiers who were beating her

father in September of 1999 and she was hit on the head,

she was hospitalized . . . . However, today she testified that

after she was hit on the head, she passed out, [and] did not

require any hospitalization or medical treatment . . . .”

No. 07-3196 11

The IJ next found that Ndonyi’s claims of persecution

were not sufficiently related to her political opinion. “With

regards to the sexual assault, as deplorable and despicable

an act as that was, the respondent has failed to show that

it was on account of her political opinion.” The IJ contin-

ued, “[S]he has failed to establish a nexus that she was

‘singled out on account of her political opinion’ when

she was assaulted and jailed.” The IJ stated that the

protestors may have been jailed for disturbing the peace

or for attempting to break into an administrative office,

and not for protesting.

The IJ also stated that Ndonyi’s treatment in December

1999 while defending her father was unrelated to her

Baptist faith: “I do not find that she was hit because of

her Baptist faith, nor because of her father’s Baptist faith.

She went against a soldier or a policeman and regrettably

bore the brunt of his wrath for interfering while he was

performing his duties.” While the IJ acknowledged that

Ndonyi’s father was singled out because of the dispute

between the CBC and CNBC, the IJ stated, “I can find

no nexus presented by the respondent that would tie her

to persecution on the basis of her father’s affiliation.”

The IJ ultimately concluded that Ndonyi had not estab-

lished past persecution, or a well-founded fear of future

persecution, on account of her political opinion, religion,

or membership in a particular social group, and the IJ

denied Ndonyi’s applications for asylum and with-

holding of removal. The IJ then stated that Ndonyi’s

testimony was insufficient to conclude that she would be

imprisoned and tortured by the Cameroonian govern-

12 No. 07-3196

ment, and denied her request for CAT protection. The IJ

ordered Ndonyi removed to Cameroon.

Ndonyi filed a timely pro se appeal of the IJ’s order

with the BIA in January 2004. In March 2005, the BIA

adopted and affirmed the IJ’s conclusions that Ndonyi had

not testified credibly because the discrepancies identified

by the IJ “adequately place[d] the respondent’s testimony

into question.” In April 2005, Ndonyi petitioned for

review of the BIA’s decision with this court. And in

October 2005, the government filed an unopposed

motion to remand the case to the BIA because the IJ’s

adverse credibility determination was based in part on

her erroneous conclusion that Ndonyi had testified in-

consistently regarding being hospitalized following the

September 1999 incident. We granted the govern-

ment’s motion and remanded the case to the BIA in

November 2005.

Ndonyi retained counsel in May 2007, and in August

2007 the BIA reconsidered the case and issued a new

decision vacating its prior decision, and dismissing

Ndonyi’s appeal. After reconsidering the case, the BIA

determined that it “agree[d] with the [IJ’s] conclusion

that taking [Ndonyi’s] testimony as true, she did not

meet her burden of proof for relief.” The BIA stated that

Ndonyi’s brutal treatment while incarcerated rose to the

level of past persecution, but the BIA found that Ndonyi

did not establish that her “mistreatment was on account

of a political opinion, particular social group, or other

enumerated ground.” “[T]he demonstration was not

political, and they were only protesting the University’s

No. 07-3196 13

discrimination.” The BIA attributed Ndonyi’s treatment

to harsh prison conditions and “circumstance,” rather

than to her political views, her religion, or her father’s

leadership in the CBC. The BIA concluded that “even

accepting that the past events in their totality amounted

to past persecution,” the government rebutted the pre-

sumption of a well-founded fear of future persecution

because Ndonyi could reasonably “relocate away from the

University and her hometown . . . .” The BIA stated, “We

acknowledge her testimony that she will face discrim-

ination . . . and the evidence indicating that Anglophones

have historically had issues in Cameroon . . . . While these

factors are not insignificant, we do not find proof of a

level of hardship which would establish that internal

relocation would be unreasonable.” Ndonyi timely

filed a petition for review of the BIA’s decision with

this court in September 2007.

II. A NALYSIS

Because the BIA adopted and supplemented a portion of

the IJ’s decision, we review that part of the IJ’s decision

along with the additional reasoning provided by the BIA.

See Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008);

Khan v. Mukasey, 517 F.3d 513, 517 (7th Cir. 2008). We

review the decisions under the “substantial evidence”

standard. Ogayonne v. Mukasey, 530 F.3d 514, 518-19 (7th

Cir. 2008). Under this standard, “[w]e must uphold the

decision to deny relief so long as it is ‘supported by

reasonable, substantial, and probative evidence on the

record considered as a whole.’ ” Oryakhil, 528 F.3d at 998

14 No. 07-3196

(quoting Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir. 2008),

and Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007)).

“We will overturn the decision to deny relief ‘only if the

record compels a contrary result.’ ” Id. (quoting Mema, 474

F.3d at 416); see also Ogayonne, 530 F.3d at 518-19.

Ndonyi challenges the denial of her application for

asylum and withholding of removal on several grounds.1

First, Ndonyi asserts that the IJ made an improper

adverse credibility determination before denying her

application. But because the BIA assumed that Ndonyi

was a credible witness when it dismissed her appeal in

October 2007, the IJ’s adverse credibility determination is

irrelevant to our review; we will assume, as the BIA did,

that Ndonyi’s testimony credibly established a fear of

past persecution. See Gonzalez v. INS, 77 F.3d 1015, 1023

(7th Cir. 1996); see also Kayembe v. Ashcroft, 334 F.3d 231,

235 (3d Cir. 2003).

Ndonyi also argues that the IJ and BIA deprived her

of procedural due process under the Fifth Amendment by

refusing to fully consider her evidence, and by misap-

plying the law to her case. However, we have repeatedly

stated that “immigration proceedings that meet statutory

1

Ndonyi has failed to raise her CAT claim in her brief before

this court, and we see no “manifest error” in the immigration

courts’ reasoning on that claim. She has therefore waived

judicial review on her claim for CAT protection. See Haxhiu

v. Mukasey, 519 F.3d 685, 692 (7th Cir. 2008); cf. Oryakhil, 528

F.3d at 997 (finding waiver where petitioner did not raise

claim before the court of appeals or the BIA).

No. 07-3196 15

and regulatory standards comport with due process, and,

as such, aliens are better-served by arguing instead that

immigration proceedings infringed the statutory and

regulatory right to a reasonable opportunity to present

evidence.” Khan, 517 F.3d at 518; see also Hussain v. Keisler,

505 F.3d 779, 781 (7th Cir. 2007); Kadia v. Gonzales, 501

F.3d 817, 824 (7th Cir. 2007). And Ndonyi has not ad-

vanced a colorable challenge to the immigration courts’

evidence-gathering process, but instead argues that they

derived improper inferences from the facts and misapplied

the law in arriving at their asylum determinations. We

will evaluate these arguments as part of Ndonyi’s sub-

stantive challenge to the immigration courts’ denial of

her application for asylum and withholding of removal.

In order to establish her claim for asylum, Ndonyi bears

the burden of proving that she is unable or unwilling

to return to Cameroon because of past persecution or a

well-founded fear of persecution, on account of her race,

religion, political opinion, nationality, or membership

in a particular social group. See Oryakhil, 528 F.3d at 998;

Soumare v. Mukasey, 525 F.3d 547, 552 (7th Cir. 2008); see also

8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13. A request

for withholding of removal seeks relief under the Im-

migration and Nationality Act, “which prohibits the

removal of a person to a country where his ‘life or freedom

would be threatened . . . because of [his] race, religion,

nationality, membership in a particular social group, or

political opinion.’ ” BinRashed v. Gonzales, 502 F.3d 666, 670

(quoting 8 U.S.C. § 1231(b)(3)(A) (alteration in original)).

“To be eligible for withholding of removal, an applicant

16 No. 07-3196

must demonstrate a clear probability of persecution.”

Shmyhelskyy v. Gonzales, 477 F.3d 474, 481 (7th Cir. 2007); see

also INS v. Stevic, 467 U.S. 407, 410 (1984)). The required

showing for withholding of removal is “more stringent”

than an applicant’s burden of proof on an asylum

claim. Shmyhelskyy, 477 F.3d at 481; see also Soumare, 525

F.3d at 552.

In arguing that the BIA and IJ substantively erred by

denying her application for asylum and withholding of

removal, Ndonyi contends that the record established

past persecution and a well-founded fear of persecution

based on her political opinion and religious views. She

writes in her brief, “The record indicates that [she] was

arrested, detained and sexually assaulted as a result of her

participation in an NSA protest, which aimed to end

discrimination against the Anglophone minority.” She

continues, “The record also demonstrates that [she] and

her family suffered persecution because of their Baptist

faith and her father’s CBC membership.”

Through her testimony and corroborating sub-

missions, Ndonyi presented an abundance of evidence

of past abuse. She detailed the facts of multiple arrests

without legitimate cause, several severe beatings, and a

violent rape. These incidents clearly represent a “punish-

ment or . . . infliction of harm . . . that this country does not

recognize as legitimate.” Boci v. Gonzales, 473 F.3d 762, 766

(7th Cir. 2007). Such egregious, repetitive acts of physical

cruelty—including one incident that required Ndonyi to

be hospitalized—clearly rise to the level of past persecu-

tion if they occurred “on account of” Ndonyi’s political

No. 07-3196 17

opinion or religious views. See Tchemkou v. Gonzales, 495

F.3d 875, 791-93 (7th Cir. 2007); Cecaj v. Gonzales, 440 F.3d

897, 899 (7th Cir. 2006). This circuit and several other

circuits have adopted the doctrine of “mixed motives,”

“ ‘which recognizes that an individual may qualify for

asylum if his or her persecutors have more than one

motive as long as one of the motives is specified in the

Immi gration and Nationality Act.’ ” Gjerazi v. Gonzales, 435

F.3d 800, 812 (7th Cir. 2006) (quoting Mohideen v. Gonzales,

416 F.3d 567, 570 (7th Cir. 2005)); see also De Brenner v.

Ashcroft, 388 F.3d 629, 636 (8th Cir. 2004); Lopez-Soto v.

Ashcroft, 383 F.3d 228, 236 (4th Cir. 2004); Girma v. INS, 283

F.3d 664, 667 (5th Cir. 2002); Borja v. INS, 175 F.3d 732,

735-36 (9th Cir. 1999); Chang v. INS, 119 F.3d 1055, 1065

(3d Cir. 1997).

In determining that Ndonyi did not suffer “on account

of” her political opinions regarding Anglophone rights,

the BIA completely ignored the doctrine of mixed

motives—the opinion does not analyze whether Ndonyi’s

oppressors were partially motivated by politics or

religion, and makes no mention of any of our precedent

on the issue. The IJ and the BIA also “failed to consider

the evidence as a whole, as [they were] required to do

by the elementary principles of administrative law.” Cecaj,

440 F.3d at 899. The IJ stated that Ndonyi may have been

jailed for disturbing the peace or for attempting to break

into an administrative office. But this is “radically defi-

cient” reasoning because it utterly fails to consider the

context of Ndonyi’s arrest. See id. The IJ’s curt statement

fails to account for the fact that the protestors “disturbed

the peace,” and supposedly attempted to trespass, be-

18 No. 07-3196

cause they were engaged in a political rally—Ndonyi

was not merely shouting obscenities or engaged in

random criminal acts, but was protesting the discrim-

inatory treatment of Anglophone students at the Univer-

sity. This is especially troubling considering that Ndonyi

needed to prove only that her persecution was partially

motivated by her political opinion. See Gjerazi, 435 F.3d

at 812; Mohideen, 416 F.3d at 570.

Even more surprising is the BIA’s additional reasoning

that “the demonstration was not political, and they were

only protesting the University’s discrimination.” It is

difficult for us to understand how a large group pro-

testing a pattern of discrimination targeted at a specific

minority could be apolitical—to us such a demonstration

epitomizes political speech. Cf. N.A.A.C.P. v. Claiborne

Hardware Co., 458 U.S. 886, 915 (1982) (“[S]peech to

protest racial discrimination is essential political speech

lying at the core of the First Amendment.” (quoting Henry

v. First National Bank of Clarksdale, 595 F.2d 291, 303 (1979))).

The IJ also failed to account for the severity of the

response by the police, who arrived armed, en masse, and

then raped the female students at the prison. An asylum

applicant may prove her claim through circumstantial

evidence. Terezov v. Gonzales, 480 F.3d 558, 564 (7th Cir.

2007); Gjerazi, 435 F.3d at 812. And the severity of the

police’s actions represents strong circumstantial proof of a

political animus. It suggests more than mere “harassment”

or harsh prison conditions, but politically charged brutality

and intimidation.

No. 07-3196 19

Equally troubling are the IJ’s and BIA’s reasoning with

regard to Ndonyi’s prison beating in September 1999. The

IJ’s statement that Ndonyi “went against a soldier or a

policeman and regrettably bore the brunt of his wrath for

interfering while he was performing his duties,” com-

pletely ignores context. The family was rounded up and

arrested, and Ndonyi’s father was tortured in front of

her eyes, because of the family’s affiliation with the CBC.

To focus on the action that directly precipitated the offi-

cer’s response and make no mention of Ndonyi’s presence

in the prison because of her affiliation with the CBC

religious sect is quite disingenuous. Similarly, the BIA’s

determination that the beating occurred as a result of

prison conditions and “circumstance” entirely ignores

the events leading up to the family’s experience in the

prison, as well as the fact that local officials affiliated

with the CNBC.

Thus, we do not believe that the evidence, considered as

a whole, supports the IJ’s or BIA’s determinations

that Ndonyi did not suffer past persecution on account

of an enumerated ground. The BIA ignored two recent

cases on the doctrine of “mixed motives,” and bluntly

asserted that the IJ had correctly reasoned the issue.

The decisions were not supported by substantial evi-

dence and the facts in the record compel a contrary result.

“[O]nce past persecution is shown, the burden

shifts to the government to establish that the alien lacks

a well-founded fear of future persecution.” Cecaj, 440

F.3d at 900; see also 8 C.F.R. § 208.13(b)(1). The IJ did not

adopt this burden-shifting approach because she found

20 No. 07-3196

that Ndonyi was not credible and had not suffered past

persecution. But the BIA stated, in the alternative, that

“even accepting that the past events in their totality

amounted to past persecution on account of an

enumerated ground,” Ndonyi did not have a well-founded

fear of future persecution because Ndonyi remained in

Cameroon for several months without incident and

internal relocation is a plausible option.

“The immigration regulations contemplate two

separate inquiries to determine whether an applicant

could reasonably relocate within his home country:

(1) whether safe relocation is possible, and if so,

(2) whether it would be reasonable to expect the ap-

plicant to safely relocate.” Oryakhil, 528 F.3d at 998; see

also 8 C.F.R. §§ 208.13(b)(2)(ii), 208.13(b)(3)(i). We there-

fore ask whether safe relocation was both (1) possible

and (2) reasonable for Ndonyi, bearing in mind that it is

the government’s burden to establish these facts in this

case. See Oryakhil, 528 F.3d at 998; Cecaj, 440 F.3d at 900.

On this record, it is very difficult for us to discern how

relocation within Cameroon would be either possible or

reasonable for Ndonyi. Ndonyi’s testimony, and the State

Department’s 2001 and 2002 Country Reports on Human

Rights Practices in Cameroon, evince a national

hostility toward Anglophones. And the affidavit from

the missionary corroborated Ndonyi’s testimony

regarding the severe backlash against her family due to

her father’s allegiance with the CBC. Thus, we cannot

say that Ndonyi can safely return to the northwest prov-

ince because she might face backlash there, and it is

No. 07-3196 21

unreasonable to expect her to relocate to another part of the

country: she has no known family anywhere else in

Cameroon, all but one other province is dominated by

French speakers, and Anglophones are relegated to an

inferior class status. See Oryakhil, 528 F.3d at 1000 (“The

immigration regulations set out several factors in deter-

mining whether a relocation is reasonable, including ‘any

ongoing civil strife within the country; administrative,

economic, or judicial infrastructure; geographical limita-

tions; and social and cultural constraints, such as age,

gender, health, and social and familial ties.’ ” (quoting 8

C.F.R. § 208.13(b)(3))). In fact, the reports confirmed that

life would not be easy for Ndonyi even in the Anglophone

parts of Cameroon: “[N]atives of the two Anglophone

provinces, the Northwest and Southwest Provinces . . .

have suffered disproportionately from human rights

violations committed by the Government and its security

forces.”

The government presented no evidence to refute

Ndonyi’s testimony, or the other corroborating evidence

in the record, that suggests that Ndonyi cannot

reasonably relocate within Cameroon. And the BIA did

not specifically address any of Ndonyi’s evidence.

Instead, it appears to have shifted the government’s

burden onto Ndonyi. The BIA stated, “We acknowledge

her testimony that she will face discrimination . . . and

the evidence indicating that Anglophones have

historically had issues in Cameroon . . . . While these

factors are not insignificant, we do not find proof of a

level of hardship which would establish that internal

relocation would be unreasonable.” Therefore, the BIA’s

22 No. 07-3196

alternative holding was both substantively erroneous,

and premised on a legal error. Based on this record, the

government did not rebut the presumption that Ndonyi

has a well-founded fear of persecution if she returns

to Cameroon. See Cecaj, 440 F.3d at 900.

III. C ONCLUSION

We G RANT the petition for review of the order of re-

moval, V ACATE the order of removal, and R EMAND for

further proceedings consistent with this opinion.

9-2-08