Appendix — Afanzi v. Holder, (2008) (No. 906)

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FILED: August 19, 2008

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 06-1236

(A96-269-753)

JOSEPH AFANWI

Petitioner

Vv.

MICHAEL B. MUKASEY, Attorney General

Respondent

AMERICAN IMMIGRATION LAW FOUNDATION;

AMERICAN IMMIGRATION LAWYERS

ASSOCIATION; CAPITAL AREA IMMIGRANTS’

RIGHTS COALITION; NATIONAL IMMIGRANT

JUSTICE CENTER,

Amici Supporting Petitioner

ORDER

Upon consideration of petitioner’s motion to stay

mandate and maintain stay of removal pending

certiorari review, the Court denies the motion.

2a

Entered at the direction of Judge Ellis with the

concurrence of Chief Judge Williams and Judge

Duncan.

For the Court

/s/ Patricia S. Connor, Clerk

3a

JOSEPH AFANWI, Petitioner v. MICHAEL B.

MUKASEY, Attorney General, Respondent

No. 06-1236

UNITED STATES COURT OF APPEALS FOR THE

FOURTH CIRCUIT

On Petition for Review of an Order of the Board of

Immigration Appeals.

(A96-269-753)

Argued: September 25, 2007

Decided: May 19, 2008

Before WILLIAMS, Chief Judge, DUNCAN,

Circuit Judge, and T.S. ELLIS, HUI, Senior United

States District Judge for the Eastern District of

Virginia, sitting by designation.

ELLIS, Senior District Judge:

In this immigration and asylum case, petitioner

Joseph Afanwi, a citizen of Cameroon, seeks review of

three Board of Immigration Appeals (BIA) orders: (i)

a November 29, 2005 Order affirming an immigration

judge’s denial of Afanwi’s asylum claim; (ii) a

February 13, 2006 Order denying Afanwi’s motion to

rescind and reissue the November 29 Order; and (iii)

a May 12, 2006 Order denying Afanwi’s motion to

reopen immigration proceedings. For the reasons that

follow, the petition is denied.

4a

1.

Afanwi, a citizen of Camcroon, entered the United

States legally in July, 2002. As a non-immigrant

visitor, Afanwi was authorized to remain in the

United States only until January 23, 2003. On

January 20, 2003, Afanwi filed, pro se, an application

for asylum, withholding of removal, and protection

under the United Nations Convention Against

Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment (CAT).' Afanwi claimed

that he was a membcr of the Social Democratic

Front? and the Southern Cameroons National

Council,? and that his membership and involvement

in these groups made him a target of persecution in

Cameroon.

Afanwi’s application was referred to an

immigration judge (IJ), and while the application was

pending the Immigration and Naturalization Service

(INS)* began removal proccedings by filing a Notice

to Appear before the IJ. The INS alleged that Afanwi

was removable pursuant to the Immigration and

Nationality Act, 8 U.S.C. § 1227(a)(1)(B), because he

had remained in the United States longer than

' Dec. 10, 1984, 1465 U.N-T.S. 85; S. Treaty Doc. No. 100-20

(1990).

* The Social Democratic Front is an opposition political party

affiliated with the Socialist International.

> The Southern Cameroons National Council is a secessionist

organization sceking ‘decolonization’ of the predominantly

English-speaking south-western region of Cameroon.

4 The INS was subsequently incorporated into the Department

of Homeland Secunty. See Homeland Security Act of 2002,

Pub.L. 107-296, 116 Stat. 2135 (codified as amended in

scattered sections of 6 U.S.C.).

5a

permitted. Afanwi resisted removal on the same

grounds underlying his asylum, withholding of

removal, and CAT application. The IJ issued a

written opinion finding Afanwi’s claims lacking in

credibility and consequently denied his asylum,

withholding of removal, and CAT claims. Afanwi’s

timely appeal to the BIA was unsuccessful; the BIA

affirmed the IJ’s decision and dismissed Afanwi’s

appeal on November 29, 2005.

The BIA sent a copy of its November 29, 2005

Order to Afanwi’s attorney of record at the time,® but

because the attorney had relocated to another office

and did not check his mail until early January 2006,

Afanwi’s counsel did not learn of the BIA’s Order

until after the deadline for filing a petition for

judicial review had passed. Afanwi was therefore

unable to file a timely petition for review of the BIA’s

November 29, 2005 Order. Instead, Afanwi filed a

motion to rescind and reissue the November 29, 2005

decision and Order to allow him to file a timely

petition. In support of this motion, Afanwi argued

that the BJA had used an incomplete address when it

sent the November 29, 2005 Order to his attorney,

which, he said, “could have delayed delivery” thereby

preventing him from filing a timely appeal. On

February 13, 2006 the BLA denied Afanwi’s motion to

rescind and reissue.

Afanwi then filed a motion to reopen his

application on two grounds: (i) that new evidence

relating to his asylum claim justified reopening his

application, and (ii) that Afanwi had _ received

ineffective assistance of counsel. This effort also

failed. The BIA denied Afanwi’s motion to reopen on

6 We note that Afanwi is now represented by different counsel.

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May 12, 2006, finding (i) that the new evidence

proffered by Afanwi failed to remedy the

shortcomings of his original application, and (ii) that

Afanwi’s ineffective assistance claim was beyond the

BIA’s jurisdiction.

Following the BIA’s denial of his motions, Afanwi

filed this petition for review with this court on

February 27, 2006, seeking review of the BIA’s

November 29, 2005 Order affirming the denial of his

asylum, withholding of removal, and CAT claims.

Afanwi “correctcd”6 this petition on March 8, 2006, to

add a request for revicw of the BIA’s February 13.

2006 Order denying his motion to rescind and

reissue. Afanwi further “amended” the petition on

June 8, 2006, to seek review of the BIA’s May 12,

2006 Order denying his motion to _ reopen.’

Respondent filed a motion to dismiss the petition on

March 2, 2006, and Afanwi responded in opposition

on March 16, arguing that his amended petition

rendered respondent’s motion moot. Following oral

argument, the parties were instructed to file

supplemental briefs addressing whether an alien has

a Fifth Amendment right to effective assistance of

counsel in the filing of a petition for review and, if so,

whether the right extends to other aspects of the

petition-for-review process. The parties have filed

their supplemental briefs, and the appeal is now ripe

for disposition.

* Thus, the term “corrected petition” refers herein to Afanwi's

March 8, 2006 petition for review.

’ Thus, the term “amended petition” refers herein to Afanwi's

June 8, 2006 petition for review.

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IL.

The Immigration «i Naturalization Act (INA)

vests courts of appeals with jurisdiction to review

final orders of removal of an alien: 8 U.S.C. § 1252

(2005). An order of removal — formerly denominated

an order of deportation® — is “the order of the special

inquiry officer, or other such administrative officer to

whom the Attorney General has delegated the

responsibility for determining whether an alien is

deportable, concluding that the alien is deportable or

ordering deportation.”® Such an order becomes final

upon the earlier of “a determination by the Board of

Immigration Appeals affirming such order” or “the

expiration of the period in which the alien is

permitted to seek review of such order by the Board

of Immigration Appeals.”!° The INA further provides

that a petition for review “must be filed not later

than 30 days after the date of the final order of

removal.”!! Because Afanwi seeks review of three

separate orders — namely, (i) the November 29, 2005

Order affirming the immigration judge’s denial of

Afanwi’s asylum, withholding of removal, and CAT

claims, (ii) the February 12, 2006 Order denying

Afanwi’s motion to rescind and reissue, and (iii) the

May 13, 2006 Order denying Afanwi’s motion to

reopen — we will consider each individually.

8 Illegal Immigration Reform and Immigrant Responsibility Act

of 1996 § 309, Pub. L. No. 104-208, 110 Stat. 3009-546, at 3009-

627 (1996); see also Velasquez-Gabriel v. Crocetti, 263 F.3d 102,

104 (4th Cir. 2001).

98 U.S.C. § 1101(a)(47)(A).

10 8 U.S.C. § 1101(a)(47)(B).

11 8 U.S.C. § 1252(b)(1).

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Before doing so, however, we must address a

threshold jurisdictional matter, namely whether

Afanwi has correctly invoked this court’s jurisdiction

by filing procedurally proper petitions. Respondent

argues that Afanwi’s corrected and amended

petitions are procedurally improper, and that we

therefore lack jurisdiction to review the BIA’s orders

denying Afanwi’s motion to rescind and reissue and

motion to reopen. According to respondent, the

Supreme Court in Stone v. 1NS., 514 U.S. 386

(1995), construed the INA to require separate

petitions for (1) review of the original order of

removal and (2) review of any subsequent motions for

reconsideration. In other words, respondent claims

that Stone required Afanwi to file a separate petition

for review for each of the three orders in issue on this

appeal.

This argument misreads Stone, for that decision,

closely read, does not require that a petitioner must,

in all circumstances, file a separate petition for

review for each order. Instead, Stone stands for no

more than the unremarkable proposition that a

petitioner who files a motion for reconsideration of an

order cannot wait for dis;wsition of that motion

before filing a petition for review of the order for

which reconsideration is sought. In other words,

Stone avoids delaying judicial review of an order that

is pending reconsideration by requiring timely filing

of a petition for review of that order notwithstanding

that a motion for reconsideration remains

unresolved. Stone further contemplates the filing of a

separate petition once the motion for reconsideration

is resolved and the subsequent consolidation of these

petitions by the court of appeals. In the words of

Stone, “deportation orders are to be reviewed in a

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timely fashion after issuance, irrespective of the later

filing of a motion to reopen or reconsider.” 514 U.S. at

395.

Correctly read, therefore, Stone is no obstacle to

our jurisdiction to consider Afanwi’s petition. He was

not required to file separate petitions for review of

the BIA’s February 13, 2006 Order denying his

motion to rescind and reissue and the BIA’s May 12,

2006 Order denying his motion to reopen. Petitioner's

March 8, 2006 corrected petition and his June 8, 2006

amended petition suffice to bring these matters

before us for review.'2 We therefore turn to a

consideration of each of the BIA’s decisions in turn.

If.

Afanwi first seeks review of the BILA’s November

29, 2005 Order affirming the immigration judge’s

denial of his (1) asylum, (2) request for withholding of

removal, and (3) CAT application. Afanwi concedes,

as he must, that this petition is untimely, for the INA

required him to file his petition not later than 30

days after the BIA’s Order, that is, not later than

December 29, 2005.'3 It is undisputed that the

untimeliness of Afanwi’s petition with respect to the

November 29 Order is attributable to his attorney’s

failure to check his mailbox following his transfer to

another office. As a result of this oversight, Afanwi

and his counsel did not learn of the November 29,

2005 Order until after the expiration of the 30-day

period allowed by the INA for filing of a petition for

12 It is undisputed that the corrected and amended petitions

satisfy the requirements of Rule 15, Fed. R. App. P., and were

timely filed.

13 8 U.S.C. § 1252(b)(1).

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review. Specifically, Afanwi filed this petition on

February 27, 2006, some sixty days after the BIA’s

November 29, 2005 Order and thirty days after the

statutory deadline. Afanwi’s petition is accordingly

untimely with regard to the BIA’s November 29, 2005

Order, and it must be denied in this respect.

IV.

Afanwi next seeks review of the BIA’s February

13, 2006 Order denying Afanwi’s motion to rescind

and reissue the November 29 Order. We affirm the

BIA’s February 13 Order for two reasons.

First, Afanwi sought reissue of the November 29

Order on the ground that the BIA had used an

incomplete address!' that may have delayed delivery

of the November 29 Order. There is no evidence that

the incomplete address caused any delay in delivery

of the Order. Afanwi has conceded that his attorney

did not check his mailbox until well after the

deadline for a timely petition for review had passed,

and thus he cannot show that the incomplete address

prevented his filing a timely petition for review; to

the contrary, it is clear that had the BIA used a

complete address Afanwi would still have missed the

filing deadline owing to his attorney’s failure to check

his mail.!4

Second, the BIA is not obligated to rescind and

reissue its orders in circumstances such as these, as

4 Although the BIA employed a full municipal address and

named Afanwi's attorney as the recipient, the address omitted

the name of the attorney’s law firm.

' It is also worth noting that the BIA had previously used this

incomplete address to correspond with Afanwi’s attorney

without incident.

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the decision to rescind and reissue when the BIA has

committed no error is a matter of grace and

discretion. Although this issue is one of first

impression in this circuit, the Seventh Circuit has

addressed the issue in a similar situation in

Firmansjah v. Ashcroft.‘® There, the petitioning alien

had not received the BIA’s order of removal until

after the deadline to file a petition for review had

passed.!’ The Seventh Circuit concluded that while

“nothing prevents the [BIA] from entering a new

removal order, which is subject to a fresh petition for

review,’'® the court would “not say that the board

must reenter its decision if notice miscarries;

[rather,] when the [BIA] extends to aliens this

measure of grace, there is no legal obstacle to judicial

review.” '9 We join the Seventh Circuit in holding that

the decision to rescind and reissue an order of

removal is properly left to the discretion of the BIA,

and that where, as here, a petitioner fails to receive

an order through no fault of the BIA, a court of

appeals properly defers to the BIA’s decision not to

extend this measure of grace. Accordingly, Afanwi’s

petition for review is denied with respect to the BIA’s

February 13, 2006.

V.

Finally, Afanwi seeks review of the BIA’s May 12,

2006 Order denying his motion to reopen his asylum,

withholding of removal, and CAT application. The

INA permits an alien to file a single motion to reopen

16 347 F.3d 625 (7th Cir. 2003).

17 Td. at 626.

‘8 Jd. at 627.

19 Jd

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removal proceedings.2° A BIA decision denying the

motion to reopen is reviewed for abuse of discretion,?!

and we will reverse such a decision only if it is

arbitrary, capricious, or contrary to law.?2

Afanwi asked the BIA to reopen his application on

two grounds: (i) new evidence supporting his claim

for asylum, and (ii) ineffective assistance of counsel.

The BJA denied Afanwi’s motion on each ground.

First, the BIA found that the new evidence did not

support reopening Afanwi’s application because it did

not correct the application’s existing deficiencies. We

affirm the BIA’s reasoned decision in this respect. To

establish eligibility for asylum, Afanwi must

demonstrate that he is a refugee, that is, a “person

who js unable to return to his or her country 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.” 8

U.S.C. § 1101(a)(42)(A); Ausu v. N.S, 296 F.3d 316,

324 (4th Cir. 2002). The new evidence presented in

Afanwi’s motion to rcopen — namely, his allegation

that Cameroon police visited Afanwi’s home in that

country looking for him — does not create a well-

founded fear of persecution, and the BIA’s decision to

that effect cannot be said to be arbitrary, capricious,

or contrary to law.23 Accordingly, the BLA’s denial of

Afanwi’s motion to reopen on this ground is affirmed.

#” 8 U.S.C. § 1229a(c)(7).

21 N.S. v. Doherty, 502 U.S. 314, 323-24 (1995).

22 Barry v. Gonzales, 445 F.3d 741, 744-45 (4th Cir. 2006).

23 See Barry, 445 F.3d at 744-45.

13a

Next, the BIA found that it lacked jurisdiction

over Afanwi’s ineffective assistance of counsel claim

because the allegedly ineffective assistance, namely

counsel’s failure to file a timely petition for review of

the Board’s November 29, 2005 decision, occurred

after the BIA had issued its final order of removal.

The question, therefore, is whether the BIA has

jurisdiction to consider an ineffective assistance of

counsel claim when that claim arises, as here, from

the failure to file a timely petition for review with the

court of appeals. A review of the authority on this

issue discloses no settled or uniform view. The courts

of appeals have not squarely addressed the issue,

although some, including the Fourth Circuit, have

apparently assumed without deciding that the BIA

does have jurisdiction over such ineffective assistance

of counsel] claims and have affirmed BIA decisions

regarding such claims on the merits.?4 The BIA itself

has issued contradictory opinions on the subject, at

times holding, as it did here, that failure to file a

timely petition for review is beyond the BIA’s

24 See Gidiglio v. I.N.S., 35 F.3d 556 (Table) (4th Cir. 1994)

(unpublished) (affirming BIA’s denial of alien’s motion to reopen

based on attorney’s failure to file timely petition for review, on

ground that alien had not demonstrated prejudice as required

by Matter of Lozada, 19 1.& N. Dec. 637 (BIA 2003)); see also

Sako v. Gonzales, 434 F.3d 857, 862-66 (6th Cir. 2006) (same);

Ljucovic v. Gonzales, 144 Fed. Appx. 500 (6th Cir. 2005) (same).

But see Dearinger ex rel. Volkova v. Reno, 232 F.3d 1042, 1044

n.4 (9th Cir. 2000) (asserting without explanation that “[a]

claim of ineffective assistance of counsel occurring after the BIA

has ruled may be raised with the BIA by filing a motion to

reopen.”). This confusion appears to arise from courts’ reliance

on cases involving an attorney's failure to appeal an IJ’s

decision to the BIA — a scenario in which the BIA clearly does

enjoy jurisdiction. See Matter of Lozada, 191. & N Dec. 637.

l4a

jurisdiction,?®° and at times assuming that such a

claim is properly within the BIA’s jurisdiction.

Because the BIA denicd Afanwi’s motion to reopen on

the grounds that it lacked jurisdiction over his

ineffective assistance claim, the matter is squarely

before us, and we take this opportunity to state

clearly that the BIA does not have jurisdiction over

an incffective assistance claim arising out of an

alien’s counsel’s failure to file a timely petition for

review with the court of appeals.

The BIA has jurisdiction to review “questions of

law, discretion, and judgment and all other issues in

appeals from dccisions of immigration judges.”27 An

attorncy’s failure to monitor his mailbox for receipt of

a BIA decision and to file a timely pctition in the

court of appeals for review of that decision is not a

“question| | of law, discretion, [or] judgment |or] other

** See In re Juan Munuel Orozo-Solia, 2006 WL 1558842 (BIA

April 11, 2006) (ineffective assistance claim bnsed on counsel's

failure to inform alien of alicn’s appeal rights was beyond the

BIA’s jurisdiction); /n re Alva Mercedes Duarte-Gaicia, 2006

WL 729793 (BIA Feb. 14, 2006) (ineffective assistance claim

bused on counsel’s failure to file for petition for review with

court of appeals was beyond the BIA’s jurisdiction); /n re Robert

Michael St. George Grant. 2005 WL 4952740 (BIA Aug. 25,

2005) (same), Jn re Lourdes Soriano-Vino, 2003 WI. 23508567

(BIA Dec. 23, 2003) (same).

* Sec In re Nuradin Ahmed, 2005 WL, 1104347 (BLA Mar. 31,

2005) (counsel's filing of inadequate motion to reconsider with

the BIA rather than timely petition for review with court of

uppeals constituted ineffective assistance); sec also Jn re Dean

Maurice Morgan, 2006 WL 1647462 (BIA May 9, 2006)

(reyecting alicn’s incffective assistance claim based on counsel's

failure to inform alien of alicn’s appeal rights because alicn had

not presented the claim in an appropriate manner).

¥78 C.F.R. § 1003.1(d)(3)(11).

BEST AVAILABLE COPY

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issue[ |] in appeal[ ] from decisions of immigration

judges.”28 As the BIA itself has concisely put it, “any

error before the [court of appeals] by [an alien’s]

counsel does not implicate the Board since the Board

made no error as a result of [the alien’s] counsel’s

alleged ineffectiveness on this ground.”29 Accordingly,

we affirm the Board’s denial of Afanwi’s motion to

reopen on the grounds of ineffective assistance of

counsel and dismiss Afanwi’s petition for review in

this regard, since the alleged ineffective assistance, if

any, occurred before this court, not before the Board

of Immigration Appeals.

Yet this does not end our analysis, for the

Immigration and Nationality Act vests the courts of

appeals with jurisdiction over “all questions of law

and fact, including interpretation and application of

constitutional and statutory provisions, arising from

any action taken or proceeding brought to remove an

alien from the United States.” 8 U.S.C. § 1252(b)(9)

(2005). This section, known as the “zipper” clause,

consolidates review of matters arising from removal

proceedings “only in judicial review of a final order

under this section,” and strips courts of habeas

jurisdiction over such matters. Because Afanwi’s

ineffective assistance claim is before the court

pursuant to a timely petition for review of an order of

removal — namely the BIA’s denial of Afanwi’s

motion to reopen — jurisdiction over this claim is

appropriate under § 1252(b)(9).

Afanwi's ineffective assistance claim requires us

to address whether the Constitution guarantees

26 Id.

29 In re Duarte-Garcia, 2006 WL 729793.

16a

effective assistance of counsel to an alien in removal

proceedings. It is well settled that removal

proceedings are civil in nature, not criminal.*° It is

equally well settled that because removal proceedings

are not criminal proceedings, aliens facing removal

are not entitled to the Sixth Amendment’s right to

counsel, nor to the associated right to effective

counse].3' Yet, aliens facing removal are not without

rights; Congress, by statute, has created a right to

retained counsel at removal proceedings,*®? and it is

quite clear that aliens enjoy a Fifth Amendment right

to due process in such proceedings.**

At issue is whether Afanwi’s Fifth Amendment

right to due process in his removal proceedings

49 INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 (1984).

4!Homero v. U.S. INS, 399 F.3d 109, 112 (2d Cur. 2005); A/

Khouri v. Ashcroft, 362 F3d 461, 464 (8th Cir. 2004).

Goonsuwan v. Ashcroft, 252 F.3d 383, 385 n.2 (5th Cir 2001),

Hernandez v. Reno, 238 ¥.3d 50, 55 (1st Cir. 2001); Xu Yong Lu

v. Ashcroft, 259 F.3d 127, 131 (8d Cir. 2001); Mejia Rodriguez v.

Reno, 178 F.3d 1139, 1146 (11th Cir. 1999); Mustata v. U.S.

Dep't of Justice, 179 ¥ 3d 1017, 1022 n.6 (6th Cir. 1999),

Gandarillas-Zambrana v. Board of Immigration Appeals, 44

F.3d 1251. 1256 (4th Cir. 1995); Castaneda-Suarez v. INS, 993

F.2d 142, 144 (7th Cir. 1993): Michelson v. INS, 897 F.2d 465,

467-68 (10th Cir. 1990); Bares v. INS, 856 F.2d 89, 90 (9th Cir.

1988).

32 8 U.S.C. § 1362 (1996) (“In any removal proceedings before an

immigration judge and in any appeal proceedings before the

Attorney General from any such removal proceedings, the

person concerned shall have the privilege of being represented

(at no expense to the Government) by such counsel, authorized

to practice in such proceedings, as he shall choose.”).

*t Reno v. Flores, 507 U.S. 292, 306 (1993) (“It is well

established that the Fifth Amendment entitles aliens to due

process of law in deportation proceedings.”).

17a

includes the right to a remedy for ineffectiveness of

retained counsel. Since the 1970s, a number of

circuits have held that counsel’s performance in a

removal proceeding can be so deficient that it

deprives the alien of his due process right to a fair

hearing.*4 Interestingly, this line of cases grows out

of the Fifth Circuit’s decision in Paul v. LN.S., which

does not squarely recognize a right to effective

assistance of retained counsel but merely suggests

that such a right, if it existed, would be grounded in

the Fifth Amendment rather than the Sixth.

According to the Paul line of cases, an alien’s

counsel] will violate his client’s Fifth Amendment

right when his performance is so deficient that it

affects the fundamental fairness of the proceeding,*®

causing the alien to suffer prejudice as a result.37 A

34 See Uspango v. Ashcroft, 289 F.3d 226, 231 (3d Cir. 2002);

Huicochea-Gomez v. INS, 237 F.3d 696, 699 (6th Cir. 2001);

Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir 1999); Mejia

Rodriguez v. Reno, 178 F.3d 1139, 1146 (11th Cur. 1999);

Mojysilovic v. INS, 156 F.3d 743, 748 (7th Cir. 1998); Saleh v.

U.S. Dep’t of Justice, 962 F.2d 234, 241 (2d Cir. 1992); Lozada v.

INS, 857 F.2d 10, 13-14 (1st Cir. 1988); Magallanes-Damian v.

INS, 783 F.2d 931, 933 (9th Cir. 1986).

% Paul vy. U.S. INS, 521 F.2d 194 (6th Cir. 1975) (“[Any effective

assistance of counsel] right an alien may have [in removal!

proceedings] 1s grounded in the fifth amendment guarantee of

due process rather than the sixth amendment right to counsel,”

but “the existence, let alone the nature and scope, of such a

right has not been established.”).

% Goonsuwan, 252 F.3d at 385 n.2; Huicochea-Gomez, 237 F.3d

at 699; Javorski v. U.S. INS, 232 F.3d 124, 128-29 (2d Cir, 2000);

Mejia Rodriguez, 178 F.3d at 1146; Michelsan v. INS, 897 F.2d

465, 468 (10th Cir. 1990); Magallanes-Damian, 783 F.2d at 933.

37 Goonsuwan, 252 F.3d at 385 n.2; Michelson, 897 F.2d at 468;

see also Sako v. Gonzales, 434 F.3d 857 (6th Cir. 2006) (“The

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number of courts have held that fundamental

fairness is affected when an alien is prevented from

reasonably presenting his case.*8

Were we to follow these cases in holding that a

retained counsel’s ineffectiveness can deprive an

alien of a fundamentally fair removal proceeding, we

would next have to determine whether Afanwi’s

counsel’s alleged incffectivencss in failing to file a

timely petition for review of the BIA’s November 29,

2005 Order deprived Afanwi of an opportunity

reasonably to present his case and whether that

failure caused Afanwi prejudice. But we decline to

engage in this analysis, because we hold today,

contrary to some of our sister circuits, that retained

counsel’s ineffectiveness in a removal proceeding

cannot deprive an alien of is Fifth Amendment right

to a fundamentally fair hearing.

It is a basic principle of American constitutional

law that with one exception,®® the Constitution

two components of this formulation, prejudice and fundamental

fairness, are analogous in this specific analytical context.

“Prejudice” inquires, ex post, whether due process was violated

by evaluating whether the alien's claims could have supported a

different outcome. “Fundamental fairness” examincs the process

afforded ex ante, considering whether the denial of effective

counsel makes such a proceeding fundamentally unfair.”).

%8 Dakane v. U.S. Att'y General, 399 F.3d 1269, 1273 (11th Cir.

2003): Denko v. INS, 351 F.3d 717, 723-24 (6th Cir. 2003);

Uspanygo, 289 F.3d 226, 231; Bernal-Vallejo v. INS, 195 F.3d 56,

63-64 (ist Cir. 1999); Lopez v. INS, 775 F.2d 1015, 1017 (9th

Cir. 1985)

% The only clause 1n the Constitution that directly regulates the

conduct of private citizens 1s the Thirteenth Amendment, which

“is not a mere prohibition of state laws establishing or

upholding slavery, but an absolute declaration that slavery or

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applies only to the federal government which it

creates and, via the Fourteenth Amendment and

certain other clauses, to the governments of the

several states. The Supreme Court long ago held that

the rights guaranteed by the Constitution “cannot be

impaired by the wrongful acts of individuals,

unsupported by state authority in the shape of laws,

customs, or judicial or executive proceedings.”* It

follows that an alien’s counsel cannot violate his

client’s Fifth Amendment rights unless he can be said

to be engaging in state action.*!

involuntary servitude shall not exist in any part of the United

States.” Civil Rights Cases, 109 U.S. at 20; see also City of

Memphis v. Greene, 451 U.S. 100, 120 (1981) (same).

40 Civil Right. Cases, 109 U.S. 3, 17 (1883); see also Public

Utilities Commission of District of Columbia v. Pollak, 343 U.S.

451, 461-62 (1952) (fifth Amendment applies to and restricts

“only the Federal Government and not private persons.”);

Obleshchenko y. Ashcroft, 392 F.3d 970 (8th Cir. 2004)

(“Constitutional rights are rights against the government; that

is, they ensure that the government will not act in a certain

way.”). It 1s interesting to note that in Obleshchenko the Eighth

Circuit stated that “[b]Jecause [constitutional rights are mghts

against the government, and] this is necessarily as true of rights

secured by the fifth amendment as it 1s of any other

constitutional mght, we find it difficult to see how an individual,

such as fan alien’s] attorney, who is not a state actor, can

deprive anyone of due process rights.” Notwithstanding this

statement the panel in Obleshchenko, recognizing contrary

authority from other circuits, assumed without deciding that the

alien petitioner did have a Fifth Amendment right to effective

assistance of counsel, but denied relief on the ground that the

petitioner had not shown prejudice. 392 F.3d at 972-73.

41 See, e.g. San Francisco Arts & Athletics, Inc. v. U.S. Olympic

Committee, 483 U.S, 522, 542-43 (1987) (where plaintiff alleges

a violation of the Fifth Amendment, “[t]he fundamental inquiry

is whether the [defendant] is a governmental actor to whom the

20a

The standard for finding federal government

action under the Fifth Amendment is the same as

that for finding state action under the Fourteenth

Amendment,’? namely “whether there is a

sufficiently close nexus between the _ [federal

government] and the challenged action of the [private

actor] so that the action of the latter may be fairly

treated as that of the [federal government].”** This

may occur, as is not true here, where a private actor

exercises powers that are traditionally reserved

exclusively to the government.’' Importantly, the

mere fact that a private actor performs a function

that serves the public does not create a government

action.”

These principles, applied here, compel the

conclusion that Afanwi has not suffered any

deprivation of his Fifth Amendment rights. Simply

put, Afanwi’s counsel was not a state actor, nor is

there a_ sufficient nexus between the federal

government and counsel's ineffectiveness such that

the latter may fairly be treated as a governmental

action. To the contrary, Afanwi’s counsel was

privately retained pursuant to 8 U.S.C. § 1362, and

his alleged ineffectiveness —- namely his failure to

prohibitions of the Constitution apply.”); see a/so Correctional

Services Corp. v. Malesko, 534 U.S. 61, 66 (2001) (declining to

recognize an implied constitutional right of action against

private entities acting under color of federal law).

«2 Gerena v. Puerto Rico Legal Services, /nc., 697 F.2d 447, 449

(ist Cur. 1983); Warren v. Government Nat’? Mortgage Ass'n,

611 F.2d 1229, 1232 (8th Cur. 1980).

4} Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974).

44 [ds at 352-53

4 Rendell Baker v. Kohn. 457 U.S. 830, 842 (1982).

2la

check his mailbox regularly and to file a timely

appeal — was a purely private act. The federal

government was under no obligation to provide

Afanwi with legal representation,*® and there was no

connection between the federal government and

counsel’s failure to check his mail. Thus, Afanwi’s

counsel’s actions do not implicate the Fifth

Amendment, and accordingly counsel’s alleged

ineffectiveness did not deprive Afanwi of due

process.*”? That Afanwi was denied an opportunity to

petition this court for review of the BIA’s November

29, 2005 Order may be unfortunate, but it is not a

constitutional violation, and it is only the latter that

we may redress. Afanwi’s petition for review must

accordingly be dismissed with respect to his claim of

ineffective assistance of counsel.*®

V1.

In summary, we have addressed each of the BIA

Orders that are appropriately before us: the February

13, 2006 Order denying Afanwi’s motion to rescind

46 See supra note 31; see also 8 U.S.C. § 1362 (1996).

47 Of course, an alien’s Fifth Amendment rights can be violated

by state actors, such as the IJ or the BIA, if these actors prevent

an alien from presenting his case.

‘8 In Figeroa v. U.S. INS, 886 F.2d 76 (4th Cir. 1989), a panel of

this Court assumed, without squarely addressing, the Fifth

Amendment issue we resolve here. Although we are bound by

the holding of Figeroa, Doe v. Charleston Area Medical Center,

Inc., 529 F.2d 638, 642 (4th Cir. 1975), we are not bound by the

Figeroa panel's unwritten assumptions. Brecht v. Abrahamson,

507 U.S. 619, 630-31 (1993) (noting that stare decisis 1s not

applicable unless the issue was “squarely addressed” in the

prior decision); Fernandez v. Keisler, 502 F.3d 337, 343-44 n.2

(4th Cir. 2007) (“We are bound by holdings, not unwritten

assumptions.”).

22a

and reissue the November 29 Order, and the May 12,

2006 Order denying Afanwi's motion to reopen

immigration proceedings. We have also addressed the

merits of Afanwi’s ineffective assistance of counsel

claim. We have not addressed the merits of the

November 29, 2005 Order affirming the IJ’s denial of

Afanwi’s asylum claim because Afanwi’s petition for

review of this Order was untimely.

For the above reasons, Afanwi’s petition for

review with respect to the BIA’s November 29, 2005

Order, the BIA’s February 13, 2006 Order, the BIA’s

May 12, 2006 Order, and Afanwi’s claim of ineffective

assistance of counsel must be denied.

PETITION FOR REVIEW DENIED

23a

U.S. Department of Justice Decision of the Board of

Executive Office for Immigration Appeals

Immigration Review

Falls Church, Virginia 22041

File: A96 269 753 — Baltimore Date:

In re: JOSEPH AFANWI May 12, 2006

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Lawrence D.

Rosenberg, Esq.

CHARGE:

Notice: Sec. 237(a)(1)(B), [&N Act [8 U.S.C.

§ 1227(a)(1)(B)] — In the United States in

violation of law

APPLICATION: Motion to reopen

This case was last before us on November 29,

2005, when we dismissed the respondent’s appeal of

the Immigration Judge’s July 22, 2004, decision. The

respondent now requests that we reopen proceedings

due to his former counsel’s ineffective assistance and

new evidence he has obtained in support of his

asylum application. The Department of Homeland

Security (DHS) has not filed an opposition brief. The

motion will be denied.

24a

First, we will address the respondent’s claim of

ineffective assistance of counsel. The respondent

claims that he was prejudiced by his former counsel’s

failure to timely file an appeal of the Board’s decision

with the United States Court of Appeals for the

Fourth Circuit. While we recognize that the

respondent has attempted to abide by the procedural

requirements established in Matter of Lozada, 19

I&N Dec. 637 (BIA 1988), we note that we can only

review due process claims in regards to proceedings

before the Immigration Judge or the Board.

Therefore, any ineffective assistance the respondent

received subsequent to the final order of the Board

and in connection with an appeal of the Board’s

decision is not within our jurisdiction.

We will now consider the respondent's claim that

his case should be reopened due to events that arose

after our November 29, 2005, decision. The

respondent has submitted an affidavit from his

stepsister with his motion (Exh. A). In that affidavit,

his stepsister claims that the police came to his home

in December 2005 and interrogated the family

regarding the respondent’s whereabouts (Exh. A).

Although this evidence is new and previously

unavailable, it fails to remedy the shortcomings of his

claim, such as his lack of credibility, and further fails

to establish that he is prima facie eligible for relief.

See INS v. Doherty, 502 U.S. 314 (1992); INS v.

Abudu, 485 U.S. 94 (1988); Matter of Coelho, 20 1&N

Dec. 464 (BIA 1992); see also 8 C.F.R. § 1003.2(c)(1)

(providing requirements for motion to reopen); We

note that the affidavit does not establish that the

police would have arrested, detained, persecuted, or

tortured the respondent had he been home when they

arrived.

25a

Based on the foregoing, the motion to reopen will

be denied.

ORDER: The motion to reopen is denied.

/s/ Roger A. Paule

FOR THE BOARD

26a

U.S. Department of Justice Decision of the Board of

Executive Office for Immigration Appeals

Immigration Review

Falls Church, Virginia 22041

File: A96 269 753 — Baltimore Date:

In re: JOSEPH AFANWI Feb. 13, 2006

IN REMOVAL PROCEEDINGS

MOTION

ON BEHALF OF RESPONDENT: Thomas G.

Corcoran, Esq.

ORDER:

PER CURIAM. The respondent has filed a motion

to reissue the Board’s November 29, 2005, decision.

The motion is denied, as the decision was mailed to

the address provided by prior counsel on a Notice of

Entry of Appearance before the Board (Form EOIR-

27) dated October 21, 2004. Further, there is no

error attributable to the Board in the service of its

decision to prior counsel.

/s/ Frederick D. Hess

FOR THE BOARD

27a

U.S. Department of Justice Decision of the Board of

Executive Office for Immigration Appeals

Immigration Review

Falls Church, Virginia 22041

File: A96 269 753 — Baltimore Date:

In re: JOSEPH AFANWI Nov. 29, 2005

IN REMOVAL PROCEEDINGS

APPEAL

ON BEHALF OF RESPONDENT: Daniel Fisher-

Owens, Esq.

ON BEHALF OF DHS: Christopher R. Coxe, Jr.

Assistant Chief Counsel

CHARGE:

Notice: Sec. 237(a)(1)(B), I&N Act [8 U.S.C.

§ 1227(a)(1)(B)] — In the United States in

violation of law

APPLICATION: Asylum and withholding of removal

In a decision dated July 22, 2004, an Immigration

Judge denied the respondent’s request for asylum

and withholding of removal. The respondent’s appeal

will be dismissed.

We affirm the Immigration Judge’s conclusion

that the respondent has failed to establish past

28a

persecution or a well-founded fear of persecution

based on one of the five statutory grounds of race,

religion, nationality, membership in a particular

social group, or political opinion. JNS v. Cardoza-

Fonseca, 480 U.S. 421 (1987); Matter of Dass, 20 I&N

Dec. 120 (BIA 1989); Matter of Mogharrabi, 19 1&N

Dec. 439 (BIA 1987); Matter of Exilus, 18 1&N Dec.

276 (BIA 1982); Matter of Sun, 11 1&N Dec. 872 (BIA

1966). In the decision, the Immigration Judge

reaches various conclusions’ regarding ’§ the

respondent’s claim to asylum, including finding that

the respondent was not credible, that parts of his

story were implausible, and that he had failed to

meet his burden of proof. While we agree with the

respondent that the Immigration Judge engaged in

some unwarranted speculation, we do not find her

overall conclusion, that the testimony was not

sufficiently credible and the cvidence presented not

adequate to support the respondent’s burden of proof,

to be clearly erroneous. To the extent the respondent

argues that the Immigration Judge failed to consider

all the evidence, neither Immigration Judges nor this

Board are required to discuss every single piece of

evidence in the record and provide an exegesis on

every contention raised, as long the decision reflects

meaningful consideration of the relevant substantial

evidence. See Abdel-Masich v. INS, 73 F.3d 579 (5th

Cir. 1996); Dashto v. INS, 59 F.3d 697 (7th Cir.

1995); Casalena v. INS, 984 F.2d 105 (4th Cir. 1993).

While not mentioning some evidence specifically, we

have no reason to doubt that the Immigration Judge

considered all the evidence of record.

An asylum applicant bears the evidentiary burden

of proof and persuasion, and where there are

significant, meaningful evidentiary gaps, applications

29a

will ordinarily have to be denied for failure of proof.

Matter of Dass, supra. Despite the respondent’s

contention on appeal, the Immigration Judge did

consider his application for withholding of removal

under the appropriate, higher standard of proof and

we find no reason to remand the record for further

proceedings. As it does not appear that the

Immigration Judge erred in her conclusion that the

respondent has not presented sufficient evidence or

sufficiently credible testimony in support of the

claim, the appeal will be dismissed. See Matter of S-

M-J-, 21 1&N Dec. 722 (BIA 1997); Matter of Dass,

supra, Matter of Mogharrabi, supra.

ORDER: The appeal is dismissed and the decision

of the Immigration Judge is affirmed.

/s/ [illegible]

FOR THE BOARD

30a

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

UNITED STATES IMMIGRATION COURT

BALTIMORE, MARYLAND

IN THE MATTER OF _) IN REMOVAL

) PROCEEDINGS

AFANWI, Joseph )

) Case #96-269-753

RESPONDENT )

CHARGE:

INA § 237(a)(1)(B), as amended, in that

after admission as a nonimmigrant under section

101(a)(15) of the Act, Respondent remained in the

United States for a time longer than permitted.

APPLICATIONS:

Asylum pursuant to INA § 208; Withholding of

Removal pursuant to INA § 241(b)(3); Withholding of

Removal pursuant to Article 3 of the Convention

Against Torture.

APPEARANCES

N F OF ON BEHALF OF

RESPONDENT DHS

Ichiro Morinaga & Christopher Coxe

Sarah Warlick Assistant Chief

Center for Applied Counsel

Legal Studies 31 Hopkins Plaza,

Georgetown University Seventh Floor

School of Law Baltimore, MD 21201

111 }. Street, N.W.

Washington, D.C. 20001

Respondent is a thirty-two-year old male, native

and citizen of Cameroon. He was admitted to the

United States at Washington, D.C. on or about July

22, 2002 as a nonimmigrant B-1 with authorization

to remain in the United States for a temporary period

not to exceed January 23, 2003. Respondent

remained beyond such period without authorization

from the Department of Homeland Security

(Government). Subsequently, on March 11, 2003, the

Government issued Respondent a Notice to Appear

(NTA) alleging the following: (1) that Respondent is

not a citizen or national of the United States; (2) that

Respondent is a native and citizen of Cameroon; (3)

that Respondent was admitted to the United States

at Washington, D.C. on or about July 22, 2002 as a

nonimmigrant B-1 with authorization to remain in

the United States for a temporary period not to

exceed January 23, 2003; and (4) that Respondent

remained beyond such period without authorization

from the Department of Homeland Security

(Government). The NTA charges Respondent with

removability pursuant to INA § 237(a)(1)(B) as one

who, after admission as a nonimmigrant under

section 101(a)(15) of the Act, has remained in the

United States for a time longer than permitted.

At a Master Calendar Hearing held on May 13,

2003, Respondent admitted allegations one through

four and conceded the charge of removability. In the

event of removal, Respondent declined to designate a

country and the Court designated Cameroon at the

request of the Government.

32a

At the conclusion of an Individual Hearing held on

April 14, 2004 the Court reserved its decision to

further review the testimony and evidence presented.

The Court has considered all evidence and testimony,

even if not specifically addressed in this decision.

Based on the following findings, the Court shall deny

Respondent’s applications for asylum, withholding of

removal under INA § 241 (b)(3), and withholding of

removal pursuant to Article 3 of the Convention

Against Torture. The Respondent is not eligible for

voluntary departure as he was not physically present

in the U.S. for one year prior to service of the NTA.

See INA § 240(B)(b)(1 )(A).

Il. Evidence Presented

A. Testimony

Direct Examination of Respondent

Respondent testified that he left Cameroon

because of his involvement in the Social Democratic

Front (SDF) and the Southern Cameroons National

Council (SCNC), a group that advocates for the

independence of Southern Cameroon. He stated that

the government of Cameroon is currently looking for

him and that he will be arrested or killed if he

returns. Respondent indicated that he had two

encounters with the police in 1990, two in 1992, one

in 1994, one in 1997, and one in 1999. Respondent

testified that he led peaceful SDF demonstrations. At

a demonstration to launch the SDF on May 26, 1990,

the police arrested, beat and shot and killed three

people. Respondent testified that he was able to

escape and that he hid in the ceiling of his friend’s

house in order to escape detection by police. He

indicated he left his hiding place to attend church on

June 7, 1990. He stated that it was safe for him to do

33a

so since the police had surrounded the chairman's

residence. Respondent testified that as he was

returning home from church, a police van pulled

beside him. Although Respondent attempted to run

away, a police officer caught him and proceeded to

kick and beat him on his head, chest and the soles of

his feet. According to Respondent, he lost

consciousness and was cold and muddy when he

awoke. He stated that he heard the police say

something in French, possibly relating to the SDF,

before losing consciousness again. The next day,

Respondent was taken to the hospital, where he

remaincd from June 8-10, 1990.

Respondent indicated that he participated in

another rally in 1992 in Bamenda. He stated that the

demonstration was organized to protest the rigging of

the election by the government. Respondent testified

that as he was leading a group of demonstrators in

marching and chanting anti-government slogans, the

police stopped him and ordered him to sit on the

ground. According to Respondent, the police then

beat him on the head and kicked him on the stomach

and back. Respondent stated that he was able to

escape by crawling away and that he found shelter in

a woman’s kitchen. He testified that the woman

washed his face, provided him with water, and gave

him money to pay for transport home. Respondent

testified that he believes the police were trying to

discover who had sent the protestors and why they

were on the streets.

Respondent’s next enccunter with the police took

place in November 1922. © _szondent testified that as

he was approaching Finance Junction, he noticed a

large crowd of people. He stated that a police officer

34a

stopped him and requested identification. Suddenly,

Respondent was hit on the head and knocked to the

ground, where he lay bleeding. Respondent indicated

that the police officer kicked his stomach, trampled

on his feet, and beat the soles of his feet. He testified

that as he lay there blceding, the officer stated that

Respondent's blood was like water and that it could

be replenished by drinking more water. Respondent

testified that he did not attempt to run away because

he was afraid of being shot or being targeted as a

suspect. According to Respondent, another police

officer discovered Respondent and took him to a

Baptist clinic. Because the clinic was closed,

Respondent was forced to return home, where he

shaved his head and applied iodine to his cuts.

Respondent stated that he officially joined the

SCNC in 1997 in order to assist the Southern

Cameroons’ struggle but that he had participated in

SCNC activities prior to that time. He testified that

he learned about the struggle at Yaounde University,

from reading books, and from hearing the chairman

speak. Respondent stated that the SCNC called for a

peaceful solution to the problem and that it did not

advocate violence. He indicated that he never used

violence and that he was never charged with a crime

by the Cameroonian government. Respondent stated

that he studied at Yaounde University and that

Professor Chiabi’s teachings on the plight of

Anglophones impacted him greatly. Respondent

stated that he lived in Yaounde but that he regularly

visited his family and attended SCNC meetings in

Bamenda. He testified that he was not politically

active in Yaounde but that he was very involved in

politics in Bamenda.

35a

Respondent stated that in 1994, he chaired an

alumni association that aimed to empower youth

regarding their civic rights. He indicated that he

regularly presided over SCNC meetings and briefed

his chairman. Respondent stated that the police

knew of his involvement in the Civil Rights

Empowerment Group (CREG) because at a rally on

May 19, 1994, CREG called for a total boycott of the

May 20th government festivities. According to

Respondent, three police officers attacked him on his

way home. One of the officers said something in

French at which time the officers proceeded to hit

Respondent’s face and nose and kick his body.

Respondent indicated that the officers told him to

stop organizing rallies and walked away.

According to Respondent, his next encounter with

police took place on April 5, 1997. He stated that he

had returned to Akum for Easter and that at 6 a.m.

the next day, four police officers arrived at his home

to arrest him. He indicated that the officers

handcuffed him, brandished a warrant, and beat him

on the head and stomach. Respondent stated that in

response to his screams, his mother rushed out, after

which she was beaten and ordered to sit quietly on

the floor. He testified that the police searched the

house and took Respondent’s SCNC card and other

SCNC letters and petitions. Next, they escorted

Respondent to a taxi where he was forced to sit

between two officers in front and two in back during

the trip to Bamenda police headquarters. Once there,

Respondent stated that the police took down his

name, address, and the names of his parents. Next,

they kicked him and beat him on the shins and the

soles of his feet. He stated that the police also beat

him with a rubber baton on his head, back and

36a

stomach. According to Respondent, the police then

removed his handcuffs and ordered Respondent to

strip naked.

Respondent stated that he was jailed in the

Provincial Police Headquarters in a cell that was

narrow, dark, and dirty. He indicated that his cell

had no blankets or furniture and that it contained

only a single bucket in the corner. Respondent

testified that the next morning, the police

interrogated Respondent about what he was doing on

March 28-29, 1997 and that he replied that he was in

Yaounde during that time. When the officer asked if

Respondent knew why he was arrested, Respondent

answered in the negative. According to Respondent,

the officer laughed and told Respondent that the

police suspected him of terrorist acts committed by

the SCNC. He then forced Respondent to promise

that he would abstain from participating in SCNC

activitics by offering to releasc him.

Respondent testificd that he was not involved in

the March 28-29 attacks and that he believes that the

SCNC was not involved. He indicated that during his

time in detention, the police subjected him to

“morning coffee, “ a technique where Respondent was

beaten on the soles of his feet and body, and then

forced to jump on sharp gravel while singing anti-

SCNC slogans. Respondent testified that “morning

coffee” took place every day. He further stated that as

a result of so many beatings, his right testicle became

swollen and painful and that he was bruised on his

feet and body. Respondent testified that he passed

out on April 10, 1997 and that he woke up the next

morning in Bamenda Provincial Hospital. He stated

that his mother was present when he awoke but that

37a

he never asked her how she learned of his

whereabouts. Respondent indicated that his mother

transported him to Mbengwi District Hospital

because he was afraid that the police might realize he

had not died and would pursue him. He stated that

he remained hospitalized from April 11-15, 1997.

Respondent testified that he was tempted to quit

the SCNC but that he changed his mind when he

realized he was fighting for posterity. He stated that

the police knew he continued his SCNC activities and

that on September 27, 1999 he was arrested for

chairing an SCNC meeting in Akum. Respondent

testified that the police stormed the building, ordered

Respondent to stop the meeting, and began collecting

SCNC documents. The police transported all twenty

SCNC members to Bamenda Provincial Police

Station, where they registered their names and

addresses. Respondent testified that the police

segregated the sexes then ordered them to strip

naked. Next, the police jailed them and beat

Respondent. Respondent testified that the guards

administered “morning coffee” frequently since they

believed he was the group leader. He stated that he

remained in jail from September 27-October 9, 1999.

Respondent indicated that his imprisonment

ended when his mother learned from his uncle's

friend, a warden, that the SCNC members were to be

transferred to a maximum security prison in

Yaounde. Because the prison is notorious for cruel

treatment and even death, Respondent’s mother went

to the home of the police officer and begged him to

help. Respondent stated that he believes the officer

agreed to help due to his friendship with

Respondent’s uncle. He testified that at 3:30 a.m. on

38a

October 9, 1999, a police officer called his name.

According to Respondent, the police officer told him

to run. Respondent stated that after stumbling and

thinking he would be shot in the back, he heard his

mother call his name. He testified that his uncle and

mother were waiting and that they took him to

Mbengwi where it was safer.

Respondent stated that he went into hiding in the

church in Mbengwi. While there, Respondent trained

as an evangelist and traveled into the interior to

evangelize with his pastor. He stated that he

evangelized to as many as 15 to 20 people at one

time. Respondent testified that he fears returning to

Cameroon due to the government crack down on

SCNC members, adding that government troops have

been sent throughout Cameroon to arrest SCNC

members. He stated that his mother visited him

twice while he was hiding and that during her first

visit, she told him that the police had issued a

summons ordering Respondent to report to Kumba

police station.

Respondent stated that he decided to leave

Cameroon as a result of government actions against

the SCNC. He testified that on October 14, 2001,

when SCNC was celebrating its fourteenth

anniversary of independence, the government

deployed troops to crack down on demonstrators. As a

result, three demonstrators were shot and killed. In

addition, the government arrested 100 people in

Bamenda and 500 people in Kumba. Respondent

believed he was in imminent danger and needed to

escape. He indicated that he was able to escape

Cameroon becausc his pastor assisted him in making

his travel documents. Respondent stated that his

39a

pastor went to Bamenda to obtain Respondent's

passport but does not know how he did so.

Respondent testified that he never asked his pastor

how he obtained the passport and was unable to

explain why he never asked him. He testified that on

July 15, 2002, he traveled to the U.S. embassy in

Yaounde and told the consular officer that he was

traveling to the U.S. to attend a peacemaking

conference organized by Silver Spring Presbyterian

church. Respondent stated that his answer was

honest. He further testified that the church in Silver

Spring sponsored him and paid for his airline ticket.

Respondent stated that a family friend, Oumarou,

is a police commissioner who works at the Douala

airport. He testified that Oumarou accompanied him

through checkpoints at the airport. Respondent

stated that Oumarou helped him to navigate the

checkpoints because of his connection with the head

of Respondent’s family and because Respondent

might have been arrested otherwise.

According to Respondent, he arrived in the United

States on July 22, 2002. He stated that at the time,

he planned to remain here for approximately six

months. Respondent indicated that he attended the

church conference. Respondent stated that he joined

SCNC North America to continue his fight “against

the yoke of the French military government.” and

that he has attended meetings and protests here. He

indicated that he demonstrated in front of the

Camervonian embassy on May 20, 2003 and that his

photo appears on SCNC’s website.

Respondent testified that he belongs to the Silver

Spring Presbyterian church and that he volunteers as

a Sunday School teacher. He indicated that he

40a

changed bis mind about returning to Cameroon when

he learned that the talks were not going well and

that the police were still searching for him.

Respondent stated that he explained his situation to

church leaders and that they advised him to apply for

asylum. He testified that if returned to Cameroon, he

would continue to participate in the SCNC because

he “feels that our liberation is soon and that it’s

necessary for me to continue the fight and to

bequeath a liberal and a fair socicty for my children.”

Respondent stated that he would like to return to

Cameroon because he misses his family. He indicated

that the government of Cameroon has beaten his

mother and assaulted his wife in its quest to find

him. Respondent stated that in 1999, an officer told

him that he would be shot on sight because he is an

escapee. He stated that the government is still

looking for SCNC members and that two boys from

Cameroon just got “disappeared” from the airport.

Respondent indicated that his return to Cameroon

would be tantamount to suicide because he is certain

he would be arrested at the airport and either killed

or imprisoned forever.

Cross Examination of Respondent

On cross examination, Respondent testified that

he joined the SCNC in 1997. He stated that the

SCNC was formed in 1993. When challenged, he

stated that the SCNC was formed in 1994, but that

the first Anglophone conference was held in Buea in

1993. He indicated that the second Anglophone

conference was held on May 1, 1994 in Bamenda and

resulted in the formation of the SCNC. Respondent

testified that he became a youth coordinator in Akum

shortly after he joined the SCNC in 1997. In that

4la

position, Respondent organized the youth and

educated them about the Anglophone struggles. He

testified that the SCNC has a separate youth branch,

Southern Cameroon League. He does not recall when

it was formed, but stated that it was already in

existence by the time he joined. Respondent indicated

that he does not know who created the Southern

Cameroon League but that it is currently chaired by

Akwanga, who lives in Nigeria. He stated that the

chair of the SCNC North America is Emile Mondua.

Respondent testified that he does not know how long

Mondua has held that position nor who preceded

him. He testified that he is familiar with the SCNC

organizational structure, indicating that it is

composed of the National Executive, the zones

(including the African zone with headquarters in

Nigeria, the North American zone, and the European

zone with headquarters in London). He further

indicated that within Cameroon, the SCNC consists

of the northern zone headed in Bamenda, the

southern zone headed in Buea, as well as many

chapters and branches.

Respondent testified that he sympathized with

the SDF, which was created in 1990. He testified that

he never joined the SDF and that he has not

sympathized with the SDF since the presidential

elections in 1992. Respondent indicated that the SDF

is a political party that secks to rule Cameroon. He

explained that the main difference between the SDF

and the SCNC is that the SCNC wants total

independence for Southern Cameroon. Respondent

stated that he was not involved in politics between

1992 and 1994.

42a

Respondent stated that when he was beaten by

police on June 7, 1990, he did not understand much

of what the officers were saying in French. However,

he understood enough to know that the police

suspected him of being involved in the SDF.

Respondent testified that he was beaten in November

1992. He conceded that his affidavits stating that he

was arrested are incorrect and indicated that he was

able to crawl away after about 30 minutes when the

officer was distracted. Respondent stated that his

second encounter with police took place within a few

weeks, during late November 1992. When challenged

as to why this information is not contained in his first

affidavit, Respondent testified that it happened so

long ago that he had simply forgotten. He stated that

he recalled the incident during the course of his

discussions with his attorneys. Although Respondent

indicated that he sustained a scrious head wound, he

conceded that such information was not included in

his first affidavit. He explained the discrepancy by

saying that someonc helped him to prepare his first

application.

Respondent indicated that he does not advocate

violence and that, to the best of his knowledge, the

SCNC has never advocated the use of violence. He

indicated that he is aware that the youth wing of the

SCNC created a military wing in Nigeria.

According to Respondent, he attended the

University of Yaounde from 1994 until 1999. He

stated that it was very difficult to gain admission

because he did not know much French at that time.

Respondent testified that he learned some French in

1993-1994 by going to the market. He stated that it

took him five years to complete a three-year course

43a

due to the language difficulties he experienced.

Respondent indicated that he had help in completing

the application process since he was not very

proficient in French at that time. He added that he

paid to have his notes translated during the first

years and that he was able to sit for his exams in

English. Respondent stated that he does not read or

write French but that he is able to speak it now.

Respondent stated that he joined the SCNC at the

beginning of 1997, before his arrest on April 5, 1997.

He further stated that he was elected to the position

of youth coordinator for Akum village before his

arrest. Respondent testified that on April 5, 1997,

four officers in civilian clothing came to his house and

took him to the police station in a taxi. After five

days, Respondent awoke in the Bamenda Provincial

Hospital. Respondent stated that his mother never

told him how she discovered he was in the hospital.

He was unable to explain why he never asked her.

Respondent stated that he does not know why he was

taken to Bamenda on September 27, 1999, adding

that it is probably because there is no jail or police

station in Akum. Respondent stated that Akum is

about a 20 to 25 minute drive from Bamenda. He

testified that in his position as youth coordinator, he

had monthly meetings with the chairman of the

northern zone and that he regularly met with

Mbinglo Humphrey. Respondent stated that he does

not know why Mr. Humphrey did not provide details

in his affidavit about the problems Respondent

experienced.

Respondent testified that after his escape on

October 9, 1999, he went into hiding in Mbengwi,

about 1% to 2 hours from Akum. He stated that the

44a

police officer had warned his mother that he would be

shot on sight. He testified that he stopped

participating in the SCNC, and that the only

exception was when Mr. Humphrey brought him food

on one occasion. Respondent indicated that he asked

his mother to get him an SCNC card and that she

was able to obtain one on his behalf on March 5,

2000. He testified that during the two and one-half

years he spent in Mbengwi, the police never found

him, nor was he arrested, harassed or physically

mistreated.

When questioned by the Court, Respondent

testified that he did not replace his SCNC card until

he was in hiding in 2000. He stated that he did not

get a new card in 1997 because the SCNC office was

not functioning. He stated that in 1998, he no longer

saw the need to do so since everyone he knew already

belonged. Respondent testified that by 2000, he knew

he would need an SCNC card to flee Cameroon.

Respondent stated that he is married and that he

met his wife in 1995 while she was living in Ngie. He

indicated that they married at the High Court of

Mbengwi during the time Respondent was in hiding.

Respondent testified that even though he was trying

to avoid the police, he felt safe going to the Court

because he knew that the authorities did not know

his whereabouts. He added that he was not afraid

because there is a distinction between the police and

the courts. Respondent indicated that his name

appears on the marriage certificate and that he

registered with the civil status registrar. He testified

that although he had lived in Mbengwi for more than

one year. his marriage certificate lists him as a

resident of Akum because Akum is his permanent

45a

address. He stated that the police issued a summons

on March 25, 2002, about one month after his

marriage. Respondent testified that his mother gave

the summons to a local chief who later brought it to

the United States. He indicated that his photo was

taken in Mbengwi and that his pastor used the photo

to obtain a passport on Respondent’s behalf.

Respondent stated that Mbengwi is a division and

that it is smaller than Silver Spring. He testified that

he told the consular officer he wanted to come to the

U.S. to attend a conference but that he planned to

return to Cameroon. Respondent indicated that he

had five different encounters with the police and that

he still suffers pain in his testicle. He testified that

he only has one testicle but stated that he never had

surgery. When questioned about the doctor’s finding

that he has a scar consistent with the removal of a

testicle, Respondent insisted that he never had an

operation. Rather, his testicle just became very small.

He added that the doctor must have been mistaken.

Respondent testified that the peacemaking

conference lasted one week. He stated that he had a

round trip ticket but that he was unsure of his

scheduled return date to Cameroon due to the fact

that his church had made all of his travel

arrangements. Respondent testified that he made his

decision to remain in the United States in October.

He indicated that he did not know the date on his

return ticket and that he allowed the church to

handle all the logistics. Respondent testified that he

never asked the church when he was supposed to

return to Cameroon.

Respondent stated that a family friend, Oumarou,

helped him to navigate the checkpoints at Douala

46a

airport. He testified that Oumarou took his passport

and then returned it to him. Respondent stated that

he never asked Oumarou what he had done and that

Oumarou never explained. Respondent stated that he

was able to proceed through the checkpoints without

being stopped because he was with a senior officer.

He indicated that no one looked at his passport and

that he was able to get through the airport without

any problems. When asked why Oumarou would have

stamped his passport if no one were going to look at

it, Respondent replied that as a senior officer,

Oumarou knew what he was doing. He added that he

is unsure why he has the stamp in his passport but

that both his passport and visa are in his name and

contain his photo.

Redirect

On redirect, Respondent testified that it is

possible that someone from the hospital knew his

mom was a nurse and thus informed her of his

whereabouts. He stated that people in Camcroon

routinely obtain passports for others. Respondent

indicated that he was married by a magistrate and

that there were no police officers at the court house.

He stated that his church booked his flight and that

he does not know who chose the return date listed on

the ticket.

Direct Examination of Dr. Cogar

The Government stipulated to Dr. Cogar’s

expertise. Dr. Cogar testified that she is employed

twenty hours per week as the Clinical Director at

Advocates for Survivors of Torture and Trauna and

that she also maintains a private practice. The

witness opined that Respondent is suffering from

Post Traumatic Stress Disorder (PTSD). She

47a

indicated that she met with Respondent on a total of

three occasions and that she met with him twice

before writing the psychological assessment. She

stated that she spent about three hours interviewing

Respondent and indicated that she used a standard

psychological interview, including a mental status

exam and history. Dr. Cogar added that diagnoses

can typically be made in one session, but that she

prefers to have a minimum of two sessions.

Dr. Cogar testified that she has not spoken to

Respondent since March 9, 2004 and that she did not

read his affidavits until after meeting with him. She

indicated that she noticed two discrepancies between

Respondent’s first and second affidavits. The first

discrepancy involved the day of the week Respondent

went to church and the second discrepancy involved a

period of time when Respondent was detained and

beaten by the police. When questioned whether these

discrepancies are significant, Dr. Cogar stated that

the discrepancy regarding the day of the week can be

explained by normal memory processes which include

loss of details over time. She testified that since

Respondent attended church frequently, it is

probable that his memories merged, causing

Respondent to lose details. With regard to the second

discrepancy, Dr. Cogar opined that it is due to the

effect of PTSD and trauma on memory, which tends

to make people remember less clearly, feel confused,

and to merge two different episodes. She added that

during the time Respondent wrote his first affidavit,

Dr. Borthwick’s assessment described Respondent as

being confused and getting very little sleep. Dr.

Cogar opined that this would affect Respondent’s

memory.

48a

Dr. Cogar stated that she formed her opinion

about Respondent before reading Dr. Borthwick’s

affidavit or Respondent’s affidavit. She indicated that

she did not consult with Respondent’s current

psychiatrist and current psychotherapist until after

formulating her opinion. Dr. Cogar stated that she

and her colleagues agree that Respondent suffers

from PTSD. She indicated that Respondent’s

psychiatrist prescribed him anti-depressant

medication and that Respondent has significantly

improved since January. The witness stated that it is

in Respondent’s best intcrest to continue treatment

with both the psychiatrist anc psychotherapist. She

added that it is important for Respondent to remain

on medication for a minimum of six months in order

to give him an opportunity to have the symptoms

resolve because symptoms of PTSD tend to continuc

over long periods of time and also tend to recur if

there are significant stressors.

Dr. Cogar testified that PTSD is a psychological

syndrome that people are known to develop after they

have experienced or witnessed severe trauma to

someone in their family. She stated that there are

three categories of symptoms in PTSD: symptoms of

re-experiencing, avoidance, and arousal. Dr. Cogar

testified that Respondent has symptoms in all three

categories, including nightmares and flashbacks,

avoidance of police and crowds, a_ sense of

hopelessness, and difficulty sleeping and

concentrating. She indicated that Respondent’s

symptoms were quite severe initially but that

medication helped to _ alleviate Respondent’s

symptoms by the second and third sessions. When

questioned by the Comi as to how she knows that

Respondent’s symptoms have lessened, Dr. Cogar

49a

testified that Respondent told her that he was able to

sleep better, that he was experiencing fewer intrusive

memories and that he felt less anxious. She stated

that Respondent’s psychiatrist also corroborated his

improvement.

Dr. Cogar testified that Respondent’s symptoms

significantly affected his functioning. She opined

that the cause of Respondent’s PTSD was a

significant trauma of the type Respondent described

to her. When asked whether Respondent’s failure to

ask his mother how she knew he had been

hospitalized was unusual, the witness testified that

when people are severely tortured, they typically

develop acute stress disorder which, like PTSD,

includes symptoms of confusion and an inability to

think clearly. Therefore, Dr. Cogar stated that she

would not expect a torture survivor to ask logical

questions. She further stated that the blows to

Respondent’s head likely affected his mental abilities,

at least temporarily. When asked whether she found

it strange that Respondent did not check the

departure date on his return ticket, Dr. Cogar stated

that she did not, particularly since Respondent was

fleeing Cameroon because he thought he would be

killed. Dr. Cogar testified that she is quite certain

about her diagnosis and bases that certainty on the

fact that Respondent was consistent during each of

his sessions and that his psychological presentation

was congruent with his story and similar to that of

other torture survivors. She added that there was

nothing else in Respondent’s history that could

account for the symptoms Respondent was having.

The witness testified that she found Respondent to be

credible and that she found no evidence of

50a

malingering. She added that three other mental

health professionals also came to the same diagnosis.

When asked whether she has ever diagnosed

someone with PTSD and then subsequently changed

the diagnosis, the witness answered in the negative.

She stated that she has refused to testify on behalf of

people whom she believed were lying to her or whose

presentations were so vague that she could not make

a diagnosis. Dr. Cogar stated that any kind of

stressful situation, especially one with similar

characteristics to the experiences Respondent had,

would aggravate Respondent’s PTSD. She indicated

that Respondent is very afraid of returning to

Cameroon. Dr. Cogar testified that Respondent’s

current treatment cannot prevent future recurrence

of PTSD as people are known to become symptomatic

again long after the original trauma, especially if

they are faced with a similar kind of trauma.

Cross Examination of Dr. Cogar

On cross examination, Dr. Cogar testified that

Respondent was referred to her by his attorneys for

the purpose of a_ psychological assessment in

connection with his asylum case. The witness stated

that her role was to perform a clinical assessment.

She indicated that an initial intake of Respondent

was done by phone and that he met her intake

criteria, i.e. that he was a victim of torture. Dr. Cogar

testified that her first session with Respondent took

place in January and that he had already been

referred and accepted by then. She indicated that

Respondent’s symptoms were self-reported and that

she observed the level of distress he experienced as

he described his trauma during the psychological

interview. The witness stated that she did not

5la

interview any of Respondent’s family members in

Cameroon. Dr. Cogar testified that she looks very

carefully at the symptoms people describe to her and

that she observes their behavior very carefully. She

stated that she docs not provide any cucs as to what

she expects to see and that she performs her

evaluations more than once. After this, she performs

a detailed, systematic review of her observations and

comes to a_ psychological diagnosis. Dr. Cogar

indicated that the purpose of an evaluation is to

determine whether or not there is a psychological

diagnosis. She stated that Respondent was scheduled

for treatment by the time she met with him.

Dr. Cogar testified that the threshold inquiry for

any PTSD case is whether there was exposure to any

traumatic event, adding that the exposure can be to

oneself or to another family member. She indicated

that one can be exposed by simply hearing that a

member of one’s family had been tortured. She added

that witnessing such an event could also trigger

symptoms of PTSD. When asked whether hearing

from his mother that his father had been killed in a

car accident would trigger PTSD symptoms, Dr.

Cogar stated that this would be unlikely because it is

not an unusual event. When given a hypothetical by

the Court about a person hearing that a family

member had been taken as a prisoner of war, Dr.

Cogar indicated that such an event would likely

result in PTSD. She stated that a person need not be

the direct victim of an event in order to experience

genuine symptoms of PTSD. She added that it is

important to understand that one is more likely to

develop PTSD after experiencing direct trauma to

himself or repeated traumas.

52a

Dr. Cogar stated that the trauma must affect

someone personally in order for him to develop PTSD.

She stated that it is unlikely that someone would

develop PTSD simply because he heard that someone

in the neighborhood has been traumatized. She

indicated that the most likely reason people get

PTSD is because they have experienced severe

trauma to themselves. Dr. Cogar added that studies

of torture victims indicate that approximately 50%

develop PTSD. She stated that it is critical to look at

a paticnt’s history to make sure that there were no

previous psychological symptoms of PTSD before

making a diagnosis. The witness stated that there

was no evidence that Respondent had any

psychological history before he experienced trauma.

Dr. Cogar stated that the discrepancies between

Respondent’s two affidavits can be explained by the

fact that trauma affects memory such that one tends

not to remember all the details of an event. She

added that she did not find anything implausible in

Respondent’s story.

Dr. Cogar stated that Respondent is experiencing

avoidance symptoms. When asked whether it is

consistent with avoidance for Respondent to

participate in the same kinds of political activities

that got him into trouble in Cameroon, the witness

responded that many of her patients have found it

quite helpful because it allows them to have a

peaceful experience with a support system. She

explained that clinical avoidance means trying to

control a flood of symptoms and that Respondent’s

participation in a demonstration at the Cameroonian

Embassy would not be inconsistent with that since

the situation here is much different from the one in

Cameroon. She indicated that she believes that

58a

Respondent’s participation in SCNC events will prove

helpful to him in that it will teach him that he can

rely on other people.

B. Documentary Evidence

The following exhibits were received and admitted

into evidence:

Exhibit 1:

e Notice to Appear dated February 6, 2003

Exhibit 2:

Submitted by Respondent

e Written Pleadings dated April 8, 2004

Exhibit 3:

Submitted by Respondent

e Application for Asylum and Withholding of

Removal and Supporting Documents:

e Respondent’s Affidavit

e Letter of Acknowledgment from Reverend

Tende David

e Essential Drug Program Information

e Respondent’s Cameroonian Passport

e Respondent’s U.S. Visa

e Respondent’s I-94

e Respondent’s Marriage Certificate

e The Heron, dated September 18-25, 2002

e The Star, dated January 9, 2002

e The Post, dated January 7, 2002

e The Post, dated January 11, 2002

e Respondent’s SCNC Card

54a

e Respondent’s SCNC Subscription Card

e Letter from SCNC Chairman Mbinglo H.

Humphrey dated October 21, 2002

e Affidavit of John Fomunyoh dated November

12, 2002

e Respondent’s Medical Certificate

e Letter from Respondent’s Mother

Exhibit 4:

Submitted by Government

e U.S. Department of State Country Report on

Human Rights Practices in Camcroon (2003)

e U.K. Extended Bulletin on Country Conditions

in Cameroon, dated November 2002

Exhibit 5:

Submitted by Government

e Guidelines for Differentiating Malingering from

PTSD

e Forensic Validity of PTSD Diagnosis

Exhibit 6:

Submitted by Respondent

e Respondent’s Brief in Support of His Application

for Asylum

e Witness List

e A-Clarification to Respondent’s 1-589 and

original 1-589

e B-Respondent’s Affidavit

e C-Affidavit of Victor T. Le Vine

e D-Curriculum Vitae of Victor T. Le Vine

55a

e E-Affidavit of Professor Joseph Takougang

¢ F-Curriculum Vitae of Professor Joseph

Takougang

e G-Affidavit of Dr. James Borthwick

e H-Curriculum Vitae of Dr. James Borthwick

e |-Statement and Medical Report of Dr. Peter

Basch

e J-Curriculum Vitae of Dr. Peter Basch

e K-Statement of Dr. Walters Shu

e L-Statement of Beatrice Fon

e M-Affidavit of Pastor J. Currie Burris

e N-Affidavit of Mbinglo H. Humphrey

e O-Affidavit of John Formunyoh

e P-Affidavit of Melysa Sperber

e Q-Affidavit of Susan E. Morinaga

e R-Respondent’s Passport

e S-Respondent’s U.S. Visa

e T-Respondent’s Airline Ticket/Itinerary

e U-Respondent’s Birth Certificate

e V-Respondent’s Marriage Certificate

e W- Birth Certificate for Mildred Lum Afanwi

e X-Photograph of Mildred Lum Afanwi

e Y-Respondent’s First School Leaving Certificate

e Z-Respondent’s Primary School Leaving

Certificate-Religious Knowledge

e AA-Respondent’s University of Yaounde

transcripts, with translation

56a

e BB-Respondent’s Bachelor’s Degree Success

Testimonial, with translation

e CC-Respondent’s SCNC Membership Card

e DD-Respondent’s Essential Drug Program

Consultation Book

e EE-Medico-Legal Certificate and Health

Attestation from Dr. Walters Shu

e F-Article from September 18-25, 2002 issue of

The Heron and Search Engine Results Showing

the Phone Number Used to Trace Journalist

Randy Joe Sa’ah

e GG-Police Summons, dated March 5, 2002

e HH-Attestation from Pastor David Tende of the

Presbyterian Church in Cameroon

e [I-Letter of Acknowledgment from Pastor David

Tende

e JJ-Conference Brochure-Commitment to

Peacemaking

e KK-Photograph of Respondent at Peacemaking

Conference

e LL-2003 Directory of Silver Spring Presbyterian

Church

e MM-SCNC U.S. Subscription Card

e NN-Photograph of Respondent and Other SCNC

Members Protesting outside the Cameroonian

Embassy

e OO-Photograph of Respondent and Other SCNC

Members Protesting outside the Cameroonian

Embassy, as posted on the SCNC U.S. Website

e PP-Letter and Envelope from Beatrice Fon

57a

¢ QQ-Amnesty International’s 2003 Report for

Cameroon

e RR-Amnesty International’s 2002 Report for

Cameroon

e SS-Amnesty International’s 2001 Report for

Cameroon

e TT-Amnesty International’s 2000 Report for

Cameroon

e UU-Amnesty International’s 1999 Report for

Cameroon

e VV-Report of the Special Rapporteur to

Cameroon

e WW-U:S. State Department Report for

Cameroon (2002)

e XX-U.S. State Department Report for Cameroon

(2000)

e YY-U.S. State Department Report for Cameroon

(2002)

e ZZ-"Every Morning, Just Like Coffee,” Torture

in Cameroon

e AAA-Cameroon Country Assessment, March

1999

e BBB-Human Rights Watch, Cameroon, 1990

e CCC-”The Reunification Question in Cameroon

History: Was the Bride an Enthusiastic or a

Reluctant One?

e DDD-Resource Information Center Response to

Information Request # CMR 03005 ZCH

e EEE-BBC News, “Cameroon Separatists Killed”

e FFF-BBC News, “Timeline: Cameroon”

58a

e GGG-The Fight for Self-Determination

e HHH-Anglophone Problem: SCNC: Emergence

of Military Wing! Jailed Youth Leader Tells

BBC that Military Wing Facilitated His Escape

from Kondengui Prison

Exhibit 7:

Submitted by Respondent

e III-Affidavit of Professor Victor T. Le Vine,

dated October 28, 2003 (marked for

identification purposes only as the Government

did not have a copy)

Exhibit 8:

Submitted by Respondent

e JJJ-Affidavit of Emmanuel Chiabi dated

February 23, 2004

e KKK-Affidavit of Dr. Mary Cogar dated

February 24, 2004

Exhibit 9:

Submitted by Respondent

e Curriculum Vitae of Dr. Mary Cogar

Exhibit 10:

Submitted by Respondent

e LLL-Affidavit of Professor Victor T. Levine,

dated April 1, 2004

e MMM-Statement of Dr. Peter Basch, dated

March 31, 2004

e NNN-Statement of Beatrice Fan, dated March

April, 2004

59a

e OOO-February 9-16, 2004 edition of The Heron

e PPP-February 25-March 3, 2004 edition of The

Heron

¢ QQQ-March 10-17, 2004 edition of The Heron

If. Position of the Parties

A. Respondent

Respondent avers that he is an SCNC member.

He argues that he has been persecuted and tortured

by the Cameroonian government on account of his

political opinion and on account of his membership in

the Anglophone minority. Respondent asserts that he

has met the statutory requirements for asylum and

that he merits a favorable exercise of discretion.

B. Government

The Government argues that Respondent is not

credible and has failed to meet his burden of proof. It

contends that Respondent hes not provided sufficient

evidence to corroborate his ciaims nor has he offered

a reasonable explanation for his failure to do so.

Finally, the Government avers that Respondent has

failed to show that internal relocation proved

impossible.

IV. Statement of Law and Findings of Fact

A. Timely Filing of Asylum Application

According to INA § 208(a)(2)(B), an applicant

must file his application for asylum within one year

of the date of his arrival in the United States. For the

purposes of this section, the applicant has the burden

of proving by clear and convincing evidence that the

application was filed within one year, or that he

qualifies for an exception to the deadline. See 8

60a

C.F.R. § 1208.4(a)(2)(i). Where an applicant fails to

timely file his application, or any supporting

documents as required under 8 C.F.R. §1003.31(c),

the application is deemed waived or abandoned.

Respondent’s application for asylum and

withholding of removal was sworn before the asylum

officer on January 23, 2003. The record shows that

Respondent entered the United States on July 22,

2002. Therefore, the Court finds that Respondent’s

application for asylum is timely.

B. Asylum

1. Applicable Standards

INA § 208(a) provides that an alien may be

granted asylum in the exercise of discretion if he

qualifies as a refugec within the meaning of the INA

§ 101(a)(42)(A). An applicant for asylum “bears the

burden of establishing that he or she meets the

‘refugee’ definition of INA § 101(a)(42)(A),” which

defines a refugee in part as an alien who is unable or

unwilling to return to his home country 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. Matter

of S-P, 21 I&N Dec. 486 (BLA 1996); sce also 8 C.F.R.

§ 1208.13(a); INA § 208(a). The alien requesting

asylum bears the evidentiary burden of proof and

persuasion in connection with any application under

section 208 of the Act. See 8 C.F.R. § 1208.136(a); see

also Matter of S-M-J, 21 I&N Dec. 722 (BIA 1997);

Matter of Acosta, 19 1&N Dec. 211, 215 (BIA 1985),

modified on other grounds, Matter of Mogharrabi, 19

I&N Dec. 439, 446 (BIA 1987). The alien’s fear of

persecution must be country-wide. Acosta, 19 I&N

Dec. at 235; see also Matter of Fuentes, 19 I&N Dec.

6la

658 (BIA 1988). Additionally, the alien must

establish that he is unable or unwilling to avail

himself of the protection of the alien’s country or

nationality or last habitual residence. INA §

101(a)(42)(A). Finally, the alien must demonstrate

that he is eligible for asylum as a matter of

discretion. See INA § 208(b)(1); see also INS v.

Cardoza-Fonseca, 480 U.S. 421, 423 (1987).

2. Credibility and Burden of Proof

In applications for asylum, withholding of

removal, and withholding of removal under Article 3

of the Convention Against Torture, the Court

generally makes a threshold determination of the

alien's credibility. See Matter of O-D, 21 I&N Dec.

1079 (BIA 1998); see also Matter of Pula, 19 I&N

Dec. 467 (BLA 1987); Matter of Vigil, 19 I&N Dec. 572

(BIA 1988). An applicant's own testimony is sufficient

to meet his burden of proving his asylum claim if it is

believable, consistent, and sufficiently detailed to

provide a plausible and coherent account of the basis

of his fear. See Matter of Dass, 20 I&N Dec. 120, 124

(BIA 1989); see also 8 C.F.R. § 1208.13(a). An

applicant may be given the “benefit of the doubt” if

there is some ambiguity regarding an aspect of his

asylum claim where credibility is not specifically

called into question. See Matter of Y-B-, 21 I&N Dec.

1136 (BIA 1998). In assessing the application for

asylum, inconsistent accounts create doubts

regarding the alien’s credibility. See Matter of

Mogharrabi, 19 1&N Dec. 439, 446 (BIA 1987).

In some cases, an applicant may be found to be

credible even if he has trouble remembering spccific

facts. See e.g., Matter of B-, 21 I&N Dec. 66 (BIA

1995) (finding that an alien who has fled persecution

62a

may have trouble remembering exact dates when

testifying, and such failure to provide precise dates

may not be an indication of deception). However,

testimony is not considered credible when it is

inconsistent, contradictory with current country

conditions, or inherently improbable or implausible.

See Matter of S-M-J-, 21 1&N Dec. 722 (BIA 1997).

After a thorough examination of this record, this

Court finds that Respondent has failed to mect his

burden of proof. Respondent’s claims are internally

inconsistent, implausible and unsubstantiated by the

record.

Significant discrepancies exist between

Respondent’s original and amended affidavits. For

example, Respondent’s second affidavit states that in

1992 “another officer attacked me in the head with

the butt of his gun or some type of stick ... I fell to the

ground and the officer kicked me all over my body. I

was rolling around on the ground in pain, and there

was blood everywhere due to a serious head wound I

had suffered.” See Exhibit 6, Tab B. Notably,

Respondent’s first affidavit does not contain any

mention of such a serious injury. See Exhibit 3.

Respondent’s account of his mistreatment is

inconsistent with the information provided by

Respondent’s mother in her affidavit. For example, in

his second affidavit, Respondent states that on June

7, 1990, “[a police officer] kicked me all over my body

and beat me with the butt of his gun and e rubber

baton in my head, chest, and back ... [hle slammed

the butt of his gun into my shins and trampled on my

legs and feet with heavy boots.” See Exhibit 6, Tab B.

Respondent goes on to state that in 1992, “an officer

beat me in the back with his baton, slapped me,

63a

kicked me, and trampled on my feet.” See id. Finally,

Respondent indicates that the police attacked him

again later that same year. See id. However, the

affidavit of Respondent’s mother indicates that

Respondent’s “first major beating” took place around

April 11, 1997. See Exhibit 6, Tab L.

In addition to being inconsistent, Respondent’s

claims lack credibility. Notably, Respondent states in

his second affidavit that he left his hiding place on

June 7, 1990 to attend church and that, although he

knew it was dangerous to do so, he subsequently

walked home alone. See Exhibit 6, Tab B. This Court

finds such a scenario highly improbable. Equally

improbable is Respondent’s contention that he spent

two years evangelizing notwithstanding the fact that

he was in hiding from authorities. This simply makes

no sense. Similarly, Respondent’s claim that he asked

his mother to obtain an SCNC card and bring it to

him while he was in hiding is highly implausible.

Respondent testified that he was able to proceed

through the checkpoints at Douala airport without

being stopped because he was with a family fricnd,

Oumarou, a senior officer. However, Respondent

failed to provide any evidence to corroborate this

event.

Respondent presented affidavits from two medical

professionals, Dr. Basch and Dr. Shu, attesting to

physical injuries he suffered. In his first affidavit, Dr.

Basch noted “[t]he presence of one testis in the

scrotum with evidence of surgery on the scrotum and

groin” and thus concluded that Respondent “did

suffer the torture and abuse that he claims.” See

Exhibit 6, Tab I. In his second affidavit, however, Dr.

Basch noted “[t]he presence of one testis in the

64a

scrotum with evidence of trauma to the scrotum and

groin.” See Exhibit 10, Tab MMM. Dr. Basch was

never presented for cross cxamination to reconcile

this inconsistency.

Similarly, Dr. Shu’s affidavit is of little

evidentiary valuc to this Court. In his affidavit, Dr.

Shu indicates that he saw Respondent “three times

for assault.” See Exhibit 6, Tab K. However, he does

not speculate on how Respondent reccived his

injuries. Additionally, Dr. Shu’s affidavit is not

notarized. Likewise, the medical certificate issued by

Dr. Shu mercly states that Respondent was “involved

in repeated cases of assault.” See Exhibit 6, Tab EE.

Again, this document docs not provide this Court

with cnough information for the Court to conclude

that Respondent’s injurics resulted from

mistreatment he claims he received during detention.

In addition, the medical certificate written on

government letterhead is not authenticated pursuant

to 8 C.F.R. § 287.6.

Although the record is replete with affidavits

submitted on Respondent’s behalf, none sufficiently

corroborates his claims of arrest and mistreatment.

Kor example, neither of Professor LeVine’s two

affidavits indicates that he has any firsthand

knowledge of Respondent’s experiences in Cameroon.

See Exhibit 6, Tab C; see a/so Exhibit 10, Tab LLL.

Similarly, Mr. Joseph Takougang’s affidavit does not

reflect any personal relationship with Respondent or

firsthand knowledge of Respondent's alleged

mistreatment in Cameroon. Sec Exhibit 6, Tab E.

Likewise, the affidavit of Currie Burris is devoid of

any details regarding the purported suffering that

Respondent experienced in his home country. See

65a

Exhibit 6, Tab M. Additionally, the affidavit of Mr.

Mblingo Humphrey fails to mention any of the

incidents of alleged abuse that Respondent suffered,

notwithstanding Respondent’s testimony that Mr.

Humphrey visited him during the period of time he

was in hiding. See Exhibit 3; see a/so Exhibit 6, Tab

N. Finally, Respondent testified that his pastor in

Mbengwi, David Tenge, obtained a passport on his

behalf. However, the pastor’s affidavit does not

mention that he secured a passport on Respondent’s

behalf. See Exhibit 6, Tab HH.

Respondent also offered an affidavit from John

Fomunyoh attesting to Respondent’s membership in

the SCNC North America. See Exhibit 3, see also

Exhibit 6, Tab O. Because this affidavit does not

provide any details as to the mistreatment

Respondent suffered as a result of his SCNC

activities in Cameroon, it, too, carries little

evidentiary weight toward meeting Respondent’s

burden of proof. Likewise, the affidavit of Dr. Chiabi

simply provides an overview of politics in Cameroon.

It does not speak to Respondent’s individual

experiences or political activities. See Exhibit 8, Tab

JJJ. As such, it does not provide this Court with

sufficient information to conclude that Respondent

was involved in the SCNC and that he was

persecuted on that basis.

Additionally, Respondent states in his second

affidavit that he was arrested in April 1997 and that

he suffered terrible abuse during his detention. See

Exhibit 6, Tab B. The affidavit indicates, “As I lay on

the ground, naked, defenseless and weak from lack of

food and water, they restrained me, beat the soles of

my feet with their rubber batons, trampled on my

66a

feet and legs, and kicked me in the back, head,

abdomen, butt, and genitals.” See id. The affidavit

goes on to state, “I spent afternoons doing forced

labor such as mopping, weeding, dusting tables and

emptying trash.” KRespondent’s’ claim _ that

notwithstanding severe beatings every morning, he

was able to perform forced labor every afternoon is

highly implausible.

Respondent claims he suffered severe beatings in

the mornings and forced labor in the afternoons

during his September 1999 detention. He further

claims that he was released from prison on October 9,

1999 by his uncle’s friend, a warden, and that he

escaped by running toward his mother and uncle,

who were waiting with his uncle’s car. Notebly, the

record does not contain an_ affidavit from

Respondent's uncle to corroborate such a claim.

Again, this Court finds it highly implausible that

Respondent would be able to run away after being

repeatedly mistreated over the course of more than

10 days. This simply makes no sensc.

In her affidavit, Respondent's mother states, “On

August 7, 2002, the police came to my house again

and demanded Joseph. | answered that I did not

know his whereabouts ... “ See Exhibit 6, Tab L. This

Court finds it highly improbable that Respondent’s

mother would refusc to tell the police about her son’s

hiding place (and suffer a beating as a result) when

she simply could have told them that her son had

already left for America. In her October 7, 2002 letter

to Respondent, his mothcr states that will not

disclose Respondent’s whereabouts “even if I have to

die for your sake.” See Exhibit 3; sce also Exhibit 6,

Tab PP. Again, this Court finds it remarkable that

67a

Respondent’s mother would take such a stance at a

time when Respondent was already safe in the

United States.

Respondent has submitted a newspaper article

regarding the arrest of an SCNC activist, Joseph

Afonui, whom he claims to be. See Exhibit 6, Tab FF.

However, Respondent spells his family name as

Afanwi. Thus, there is nothing to connect the person

in the article with Respondent.

3. Persecution

An applicant must also prove that there is a

reasonable possibility that he might suffer

persecution if returned to his native country. See 8

C.F.R. § 1208.13(b)(2)(i)(B). A well-founded fear of

persecution must be both subjectively genuine and

objectively reasonable. See Cardoza-Fonseca, 480

U.S. at 421.

A respondent must show some degree of likelihood

that he may be persecuted. Matter of Acosta, 19 I&N

at 226; see also Cardoza-Fonseca, 480 U.S. at 431.

The BIA has interpreted “persecution” to include

serious threats to an individual's life or freedom, or

the infliction of significant harm on the applicant, as

a means of punishing that person for holding a

characteristic that the persecutor seeks to overcome.

Matter of Acosta, 19 I&N at 233. Cf Klawitter v.

INS, 970 F.2d 149, 152 (6th Cir. 1992)

(distinguishing between mere harassment and

persecution); Fatin v. INS, 12 F.3d 1233, 1240 (3d

Cir. 1993) (finding that persecution within the INA

does not encompass all treatment that society

regards as unfair, unjust, or even unlawful or

unconstitutional); Matter of Kasinga, 21 1&N Dec.

357, 365 (BIA 1996) (discussing the level of harm

68a

necessary to constitute persccution). Persecution

must also be more than mere harassment. See

Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.

1998). An applicant for asylum demonstrates a well-

founded fear if he presents specific facts establishing

that he has actually been the victim of persecution.

Cardoza-Fonseca, 480 U.S. at 421; Matter of

Mogharrabi, 19 1&N Dec. at 439. Evidence of past

persecution raises a rebuttable presumption that an

alicn has reason to fear future persecution. Matter of

Chen, 20 I&N Dec. 16 (BIA 1989); 8 C.F_R. §

1208.13(b)(1)(i). This presumption may be rcbutted

by proving by a preponderance of the evidence that

conditions in the country have changed to such a

degrec that there is little likelihood of present

persecution. Matter of Chen, 20 [&N Dec. at 18.

Finally, persecution does not include discrimination,

except in cxtraordinary cases. Sce Bucur v. INS, 109

F.3d 399, 402-03 (7th Cir. 1997).

Based on the totality of the evidence, this Court

concludes that Respondent’s claim of persecution is

unsupported by the record. Respondent has not

provided sufficient evidence to conclude that his fear

of country-wide persecution in Cameroon is

“reasonable.” Respondent testified that he fears

persecution based on his SCNC membership and

subsequent detention and escape from prison in

Cameroon. However, he has failed to provide

sufficient documentary evidence to support his claim

that he was arrested, harmed and that he escaped

from prison and is now wanted by government

authorities. Additionally, Respondent testified that

he intended to return to Cameroon after his trip to

the U.S. Such an intention, if true, would be

inconsistent with that of a person fleeing for his life.

69a

Respondent did not provide any testimonial or

documentary evidence that the threat to his safety is

country-wide. In fact, Respondent testified that he

lived in Mbengwi for two years, during which time he

worked, got married and started a family. As such,

little credence can be given to Respondent’s claim

that he remains in danger. Therefore, this Court

finds that Respondent has not met his burden of

proof.

C. Withholding of Removal Under INA §241(b)(3)

Withholding of removal, in contrast to asylum,

confers only the right not to be deported to a

particular country rather than the right to remain in

the United States. See INS v. Aguirre-Aguirre, 526

U.S. 415 (1999). To establish eligibility for

withholding of removal, a respondent must show that

there is a clear probability of persecution in the

country designated for his removal on account of

race, rcligion, nationality, membership in a

particular social group, or political opinion. See /NS

v. Stevic, 467 U.S. 407 (1984). Such a showing

requires that the respondent establish that it is more

likely than not that he would be _ subject to

persecution if returned to the country from which he

seeks withholding of removal. See INS v. Cardoza-

Fonseca, 480 U.S. 421, 423 (1987).

Respondent has failed to satisfy the reasonable

fear standard required for asylum. Therefore, it

follows that he has also failed to satisfy the clear

probability standard for withholding of removal. See

INS v. Stevic, 467 U.S. 407 (1984); sce also Matter of

Y-B-, 21 I&N Dec. 1136 (BIA 1998).

D. Withholding of Removal Under the Convention

Against Torture

70a

The applicant for withholding of removal under

the Convention Against Torture bears the burden of

proving that it is “more likely than not” that he

would be tortured if removed to the proposed country

of removal. See 8 C.F.R. § 1208.16(c)(2). “lorture” is

defined in the treaty and at 8 C.F.R. § 1208.18(a)(1).

In assessing whether the applicant has satisfied his

burden of proof, the Court must consider all evidence

relevant to the possibility of future torture, including:

evidence of past torture inflicted upon the applicant;

evidence that the applicant could relocate to a part of

the country of removal where he is not likely to be

tortured; evidence of gross, flagrant, or mass

violations of human rights within the country of

removal; or other relevant information of conditions

in the country of removal. Sce 8 C.F.R. §

1208.16(c)(3).

In this particular case, the application for

withholding of removal under the Convention

Against Torture will be denied as Respondent has

failed to show that it is “more likely than not” he

would be tortured if removed to Cameroon. See 8

C.F.R. § 1208.16(c)(3). The Court reaches this

conclusion for the reasons cited above in the denial of

asylum.

E. Voluntary Departure

The Respondent is not statutorily eligible for the

privilege of voluntary departure as he was not

physically present in the U.S. for one year prior to

service of the NTA. See INA § 240(B)(b)(1)(A).

J7la

V. Conclusion

This Court has found that Respondent has failed

to meet his burden of proof with regard to his

applications for asylum, withholding of removal

pursuant to INA § 241(b)(3), and withholding of

removal pursuant to Article 3 of the Convention

Against Torture. Accordingly, such applications shall

be denied. Additionally, because Respondent failed to

show that he is statutorily cligible for voluntary

departure, such relief shall be denied. An appropriate

order is attached.

7/22/04 /s/ Jill H. Dufresne

Date Jill H. Dufresne

United States

Immigration Judge

Baltimore, Maryland

72a

Pertinent Statutory and Regulatory Provisions

8 U.S.C. § 1101(a)(42):

(a) As used in this chapter

zk**

(42) The term “refugee” means (A) any person who

is outside any country of such person’s nationality or,

in the case of a person having no nationality, is

outside any country in which such person last

habitually resided, and who is unable or unwilling to

return to, and is unable or unwilling to avail himsclf

or herself of the protection of, that country 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, or (B) in

such special circumstances as the President after

appropriate consultation (as decfined in section

1157(c) of this title) may specify, any person who is

within the country of such person’s nationality or, in

the case of a person having no nationality, within the

country in which such person is habitually residing,

and who is persecuted or who has a wellfounded fear

of persecution on account of race, _ religion,

nationality, membership in a particular social group,

or political opinion. The term “refugee” does not

include any person who 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. For purposes of determinations under this

chapter, a person who has been forced to abort a

pregnancy or to undergo involuntary sterilization, or

who has been persecuted for failure or refusal to

undergo such a procedure or for other resistance to a

73a

coercive population control program, shall be deemed

to have been persecuted on account of political

opinion, and a person who has a well founded fear

that he or she will be forced to undergo such a

procedure or subject to persecution for such failure,

refusal, or resistance shall be deemed to have a well

founded fear of persecution on account of political

opinion.

8 U.S.C. § 1158:

(a) Authority to apply for asylum

(1) In general

Any alien who is physically present in the United

States or who arrives in the United States (whether

or not at a designated port of arrival and including an

alien who is brought to the United States after

having been interdicted in international or United

States waters), irrespective of such alien’s status,

may apply for asylum in accordance with this section

or, where applicable, section 1225(b) of this title.

xx**

(b) Conditions for granting asylum

(1) In general

(A) Eligibility

The Secretary of Homeland Security or the

Attorney Gencral may grant asylum to an alien who

has applied for asylum in accordance with the

requirements and procedures established by the

Secretary of Homeland Security or the Attorney

General under this section if the Sccretary of

Homeland Security or the Attorney General

74a

determines that such alien is a refugee within the

meaning of section 1101(a)(42)(A) of this title.

8U.S.C. § 1231(b):

zkx*x*

(b) Countries to which alicns may be removed

(3) Restriction on removal to a country where

alien’s life or freedom would be threatened

(A) In general

Notwithstanding paragraphs (1) and (2), the

Attorney General may not remove an alien to a

country if the Attorney General decides that the

alien’s life or freedom would be threatened in that

country because of the alien’s’ race, religion,

nationality, membership in a particular social group,

or political opinion.

8 U.S.C. § 1252:

(a) Applicable provisions

(1) General orders of removal

Judicial review of a final order of removal (other

than an order of removal without a hearing pursuant

to section 1225(b)(1) of this title) is governed only by

chapter 158 of Title 28, except as provided in

subsection (b) of this section and except that the

court may not order the taking of additional evidence

under section 2347(c) of Title 28.

(2) Matters not subject to judicial review

* «xk

(D) Judicial review of certain legal claims

Tha

Nothing in subparagraph (B) or (C), or in any

other provision of this chapter (other than this

section) which limits or eliminates judicial review,

shall be construed as_ precluding review of

constitutional claims or questions of law raised upon

a petition for review filed with an appropriate court

of appeals in accordance with this section.

x**

(4) Claims under the United Nations Convention

Notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241 of

Title 28, or any other habeas corpus provision, and

sections 1361 and 1651 of such title, a petition for

review filed with an appropriate court of appeals in

accordance with this section shall be the sole and

exclusive means for judicial review of any cause or

claim under the United Nations Convention Against

Torture and Other Forms of Cruel, Inhuman, or

Degrading Treatment or Punishment, except as

provided in subsection (e) of this section.

(5) Exclusive means of review

Notwithstanding any other provision of law

(statutory or nonstatutory), including section 2241 of

Title 28, or any other habeas corpus provision, and

sections 1361 and 1651 of such title, a petition for

review filed with an appropriate court of appeals in

accordance with this section shall be the sole and

exclusive means for judicial review of an order of

removal entered or issued under any provision of this

chapter, except as provided in subsection (e) of this

section. For purposes of this chapter, in every

provision that limits or eliminates judicial review or

jurisdiction to review, the terms “judicial review” and

‘“Surisdiction to review” include habeas corpus review

76a

pursuant to section 2241 of Title 28, or any other

habeas corpus provision, sections 1361 and 1651 of

such title, and review pursuant to any other

provision of law (statutory or nonstatutory).

**k*

8 C.F.R. § 1003.1:

(a)(1) Organization. There shall be in the Department

of Justice a Board of Immigration Appeals, subject to

the general supervision of the Director, Executive

Office for Immigration Review (KOIR). ‘The Board

members shall be attorneys appointed by the

Attorney General to act as the Attorney Gencral’s

delegates in the cases that come becfore them. The

Board shall consist of 15 members. A vacancy, or the

absence or unavailability of a Board member, shall

not impair the right of the remaining members to

exercise all the powers of the Board.

*x** *

(d) Powers of the Board—

(1) Generally. The Board shall function as an

appellate body charged with the review of those

administrative adjudications under the Act that the

Attorney General may by regulation assign to it. The

Board shall resolve the questions before it in a

manncr that is timely, impartial, and consistent with

the Act and regulations. In addition, the Board,

through precedent decisions, shall provide clear and

uniform guidance to the Service, the immigration

judges, and the gencral public on the proper

interpretation and administration of the Act and its

implementing regulations.

x*x**

(3) Scope of review.

77a

(i) The Board will not engage in de novo review of

findings of fact determined by an immigration judge.

Facts determined by the immigration judge,

including findings as to the credibility of testimony,

shall be reviewed only to determine whether the

findings of the immigration judge are clearly

erroneous.

(ii) The Board may review questions of law,

discretion, and judgment and all other issues in

appeals from decisions of immigration judges de

novo.

**k

8 C.F.R. § 1003.2:

(a) General. The Board may at any time reopen or

reconsider on its own motion any case in which it has

rendered a decision. A request to reopen or reconsider

any case in which a decision has been made by the

Board, which request is made by the Service, or by

the party affected by the decision, must be in the

form of a written motion to the Board. The decision to

grant or deny a motion to reopen or reconsider is

within the discretion of the Board, subject to the

restrictions of this section. The Board has discretion

to deny a motion to reopen even if the party moving

has made out a prima facie case for relief.

** *

(c) Motion to reopen.

(1) A motion to reopen proccedings shall state the

new facts that will be proven at a hearing to be held

if the motion is granted and shall be supported by

affidavits or other evidentiary material. A motion to

78a

reopen procecdings for the purpose of submitting an

application for rclicf must be accompanicd by the

appropriate application for relicf and all supporting

documentation. A motion to reopen proceedings shall

not be granted unless it appears to the Board that

evidence sought to be offered is material and was not

available and could not have been discovered or

presented at the former hearing; nor shall any

motion to reopen for the purpose of affording the

alien an opportunity to apply for any form of

discretionary relicf be granted if it appears that the

alien’s right to apply for such relief was fully

explained to him or her and an opportunity to apply

therefore was afforded at the former hearing, unless

the relief is sought on the basis of circumstances that

have arisen subsequent to the hearing. Subject to the

other requirements and restrictions of this section,

and notwithstanding the provisions in § 1001.1(p) of

this chapter, a motion to reopen proceedings for

consideration or further consideration of an

application for relief under section 212(c) of the Act (8

U.S.C. 1182(c)) may be granted if the alien

demonstrates that he or she was statutorily cligible

for such relief prior to the entry of the

administratively final order of deportation.

*k***

8 C.F.R. 1208.16:

xk«xe*

(b) Eligibility for withholding of removal under

section 241(b)(3) of the Act; burden of proof. The

burden of proof is on the applicant for withholding of

removal under section 241(h)(3) of the Act to

establish that his or her life or freedom would be

threatened in the proposed country of removal on

79a

account of race, religion, nationality, membership in

a particular social group, or political opinion. The

testimony of the applicant, if credible, may be

sufficient to sustain the burden of proof without

corroboration. The cvidence shal! be evaluated as

follows:

***

(c) Eligibility for withholding of removal under the

Convention Against Torture.

(1) For purposes of regulations under Title II of

the Act, “Convention Against Torture” shall refer to

the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or

Punishment, subject to any _ reservations,

understandings, declarations, and provisos contained

in the United States Senate resolution of ratification

of the Convention, as implemented by section 2242 of

the Foreign Affairs Reform and Restructuring Act of

1998 (Pub.L. 105-277, 112 Stat. 2681, 2681-821). The

definition of torture contained in § 1208.18(a) of this

part shall govern all decisions made _ under

regulations under ‘litle Il of the Act about the

applicability of Article 3 of the Convention Against

Torture.

(2) The burden of proof is on the applicant for

withholding of removal under this paragraph to

establish that it is more likely than not that he or she

would be tortured if removed to the proposed country

of removal. The testimony of the applicant, if

credible, may be sufficient to sustain the burden of

proof without corroboration.

(3) In assessing whether it is more likely than not

that an applicant would be tortured in the proposed

country of removal, all cvidence relevant to the

80a

possibility of future torture shall be considered,

including, but not limited to:

(i) Evidence of past torture inflicted upon the

apphcant;

(11) Evidence that the applicant could relocate

to a part of the country of removal where he or she

is not likely to be tortured;

(ii) Evidence of gross, flagrant or mass

violations of human rights within the country of

removal, where applicable; and

(iv) Other relevant information regarding

conditions in the country of removal.

(4) In considering an application for withholding

of removal under the Convention Against Torture,

the immigration judge shall first determine whether

the alien is more likely than not to be tortured in the

country of removal. If the immigration judge

determines that the alicn is more likely than not to

be tortured in the country of removal, the alien is

entitled to protection under the Convention Against

Torture. Protection under the Convention Against

Torture will be granted cither in the form of

withholding of removal or in the form of deferral of

removal. An alien entitled to such protection shall be

granted withholding of removal unless the alien is

subject to mandatory denial of withholding of

removal under paragraphs (d)(2) or (d)(3) of this

section. If an alicn entitled to such protection is

subject to mandatory denial of withholding of

removal under paragraphs (d)(2) or (d)(3) of this

section, the alien’s removal shall be deferred under §

1208.17(a).

8la

(d) Approval or denial of application—

(1) General. Subject to paragraphs (d)(2) and

(d)(3) of this section, an application for withholding of

deportation or removal to a country of proposed

removal shall be granted if the applicant’s eligibility

for withholding is’ established pursuant to

paragraphs (b) or (c) of this section.

x*k

82a

Beatrice Fon

c/o Holy Family Health Center Akum

NW Province, Republic of Cameroon

October 22nd, 2003

Statement of Beatrice Fon

1. My name is Beatrice lon and I am the mother

of Joseph Afanwi who has applied for asylum in the

United States of Amcrica. I live in Akum, Northwest

Province, Republic of Camcroon, with Joseph’s wife,

Quinta Bin Tanda and their daughter Mildred Lum

Afanwi. I am making this statement in support of

Joseph's asylum application in Amcrica.

2. On several occasions, my son Joseph suffered

serious injuries while in the custody of Cameroonian

security forces because of his SCNC activities. As a

nurse, } personally treated his wounds or took him to

more appropriate medical facilities when necessary.

I remember two particularly horrendous beatings

well.

3. In the first major beating, on or around April

11, 1997, Joseph was seriously injured in the head

and nose. The police had taken him from prison to

Bamenda General Hospital, and when I came to see

him, his head and nose were very bloody. Without

the authoritics’ knowledge, | whisked Joseph away to

the District Hospital in Mbengwi where he had to

stay for a few days for recovery. I heard that he had

lost his left scrotum because of the police beatings.

Fearing reprisal from the authoritics, after Joseph’s

83a

discharge from the hospital, he and I stayed in hiding

in Mbengwi for a period of time.

4. In the other major beating, on or around

October 8, 1999, my brother Tafor Fidelis told me

that a friend of his, a Francophone police officer

working at a police station where Joseph and other

SCNC activists were imprisoned, had told him that

they were to be transferred to Yaoundé. Tafor and I

went to his friend’s house to plead with and beg him

to help Joseph escape because we feared we would

otherwise never see him alive again. The friend

agreed to help, but told us that as a prison escapee,

the police would shoot Joseph on sight if spotted. So,

thanks to our friend’s’ assistance, Joseph

miraculously escaped from the police station, and

Joseph’s church in Mbengwi helped him in hiding.

5. Since Joseph went into hiding after the second

major beating, the police have come to my house in

Akum at least twice. On one occasion, on or around

March 24, 2002, they came to serve a summons

“requesting” him to report to the Public Security

Office in Kumbo on March 25, 2002. Because none of

us were at home, they left the summon at the door.

6. On August 7, 2002, the police came to my

house again and and demanded Joseph. I answered

that I did not know his whereabouts because he had

disappeared while I was with his wife Quinta in the

hospital giving birth to their first daughter Mildred.

The police officers kicked and beat Quinta and me

even though Quinta had only recently been released

from the hospital after Mildred’s birth. I suffered an

arm wound. The police then threatened to arrest and

detain me until I disclosed Joseph’s location. We

were all hysterical. Fortunately my neighbours came

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to intervene and pleaded with the officers to leave me

alone because Quinta would not be able to take care

of Mildred without me. The police finally let me go

and lIcft my house, but only after repeating their

demand for Joseph and warning us of grave

consequences. Because we were very afraid of

another police search and harassment, Quinta,

Mildred and | went into hiding in Bafut and then

stayed with a friend in Akum. Although we arc back

at our home nowadays, we still fear the police

constantly.

7. | worry about and pray for Joseph everyday. I

am glad to know that he is safe in America. I pray

that his asylum application will be granted soon.

Although I badly miss my son and long to sce him

here in Cameroon, I want him to remain safe and

healthy more than anything else. May God be

gracious to him and his family and allow them to live

in America together.

8. | declare under penalty of perjury under the

laws of the United States of America that the

foregoing is true and correct.

Executed in Akum, North West Province, Republic

of Cameroon, on

October 23rd, 2003

/s/ Beatrice Fon 23-10-2003

Beatrice Fon

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

U.S. IMMIGRATION COURT

BALTIMORE, MD

IN THE MATTER OF _) File No. A96-269-753

)

AFANWI, Joseph ) In Removal

) Proceedings

RESPONDENT )

AFFIDAVIT OF JOSEPH AFANWI

1. My full name is Joseph Afanwi. I am applying for

asylum because the police in my country, Cameroon,

beat and tortured me because of my belief in

independence for Southern Cameroons and my

involvement with the Southern Cameroons National

Council (“SCNC”). I was attacked by police officers

several times because of my belicfs. [| was also

imprisoned and tortured twice. Many of my injuries

required hospitalization. Because I was afraid I

would be killed, I left my family and went into hiding

for almost three years in rural Cameroon. I

eventually escaped Cameroon when the police began

to crack down again on SCNC members and fled to

the United States. I fear returning to Cameroon

because I belicve I will be shot on sight or imprisoned

and severely tortured.

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2. Il am a native of Bafut Village in the North West

Province of the Republic of Camcroon. I am a citizen

of Cameroon and lived there my entire life before

coming to the United States. I was born on November

22, 1971 to Joseph Angwafor and Beatrice Angwafor.

My father was a police officer and my mother still is a

nurse. My father committed suicide when I was just a

baby, so I do not remember him. My mother got

remarried and had three more children with my

stepfather Luke Fon, a teacher. I have a stepbrother

Alfonse Fon, and two stepsisters - Scraphine Fon and

Precillia Fon. They are all students. My mother and

stepfather divorced, although my mother still goes by

Beatrice Fon. My stepfather is deceased.

3. | graduated from a Catholic primary school in

Bamenda in 1984. | graduated from a secondary

school in Mbengwi in 1990. Before my secondary

school graduation, in 1988, I converted from

Catholicism and joined the Presbyterian Church. The

Presbyterian Church attracted me because of its

emphasis on reading the Bible and going out in the

community to evangelize. My religion and my faith in

God arc guiding forces in my life. | have always been

active with the Church. In Cameroon, I was an

evangelist. Here in the United States I am a member

of the Silver Spring Presbyterian Church.

4. On May 26, 1990, the Social Democratic Front

(“SDF”) was launched in Bamenda. The founders of

the SDF wanted an opposition party to the regime of

Paul Biya. I became very excited and hopeful about

the changes that the SDF might bring about, so I

attended the launch rally on May 26 with thousands

of others. I participated by marching and chanting. It

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was a very exciting day. During the launch, which

was supposed to be peaceful, there was a large-scale

confrontation between unarmed civilians and armed

security officers in helmets and other gear. The police

shot six civilians to death and wounded many others.

The officers used a water cannon with tainted water

to disperse the crowds. The police beat and arrested

many civilians. The police shot my friend Gerald

Forbin in the leg and he had to have his leg

amputated. Paul Biya declared a state of emergency

for Bamenda. During this state of emergency, the

police harassed, arrested and tortured those who had

participated in the May 26 launch. They also

randomly raped many innocent girls and women,

including my mother.

5. 1 went into hiding after the SDF launch with a

friend, Fusi Paius, at his home in Nkwen because I

feared the police would be looking for me. We stayed

indoors all the time except on quiet days when we

went out for church so that we could pray for peace.

When we heard troops in the quarter, we hid in the

ceiling. My mother would bring us food and it was

during one of her visits that she told me of her rape.

6. On June 7, 1990, while still in hiding, I attended a

church service at the Presbyterian Church in

Ntamulung Quarter, Bamenda. I knew it was

dangerous to leave the house, but my church was too

important to me to give up. I walked home alone and

was about five minutes from the church when a black

police truck pulled up beside me. I could see about

twenty police officers on the truck, all armed with

guns. There were rumors that there had been

cameras at the rally and the police were now looking

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to crack down on the pcople they knew had attended.

I felt sure they knew I had been at the rally, so I

panicked and ran. I was afraid to be arrested because

so many pcople are tortured in prison. An officer

jumped off the truck and chased me. I was scared

that he was going to shoot me in the back as I ran.

When he caught up with me in the bushes, he kicked

me all over my body and beat me with the butt of his

gun and a rubbcr baton in my head, chest, and back.

He forced my shocs off and beat the soles of my feet

with his baton while he held mc on the ground. The

officer also slammed the butt of his gun into my shins

and trampled on my legs and fect with his heavy

boots. I felt sure he was not going to stop until I was

dead. He finally left me lying in the bushes. I woke

up in the bushes later that afternoon covered with

mud and fecling very cold. I dragged mysclf home

although I was in horrible pain. | carried my shoes

because I could not even put them back onto my feet.

My mother was upset, but she cut my muddy clothing

off of me and took care of me. I spent the night at

home, but the next day my mother took me to the

District Health Center in Mbengwi. My mother is a

nurse and she worried about internal blecding. Dr.

Shu, the only resident doctor at the hospital, treated

me. My fect swelled and bruised and I felt severe

pain all throughout my body. I remained in the

hospital for two days.

7. In 1992, Cameroon held its first multi-party

democratic presidential elections. The SDF, led by

Chairman Ni John Fru Ndi, should have won the

election, but Paul Biya’s political party, the

Camcroon People’s Democratic Movement, rigged the

election in Paul Biya’s’ favor. Well-reputed

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organizations like the Washington, D.C.-based

National Democratic Institute declared that the

election was not free and fair. Despite this, Paul Biya

shamelessly installed himself as the president of

Cameroon. Many angry Cameroonians staged a

series of civil disobedient demonstrations in

November of 1992 to protest the rigged election. |

actively participated in the Bamenda protests by

carrying placards and leading a_= group of

demonstrators as we chanted anti-government

slogans. The police took me into custody and forced

me to sit in the road with others they had also

detained. The police questioned why we were on the

streets demonstrating and beat the seated crowd. An

officer beat me in the back with his baton, slapped

me, kicked me, and trampled on my feet. I was

terrified that I would be taken to prison - I had heard

horrible stories about people being starved, tortured,

and killed in prison. I was also scared because I had

heard stories about people losing their eyesight after

the police detained them in the dark for long periods

of time. When the officer was later distracted, I snuck

away, crawling, and crawled into a woman’s kitchen

nearby. She took pity on me and gave me water to

drink and wash my face, and gave me money to take

a taxi home.

8. Later that same month, | walked through Finance

Junction in Nkwen and saw twenty or thirty people

seated in the road, outnumbered by police officers.

The officers were stopping pedestrians and cars and

trying to intimidate the population. I was scared to

keep walking through the Junction, but I did not

want to look suspicious by turning around or

running. The officers had guns, so I especially did not

90a

want to run from them. Onc of the officers stopped

me and asked for my ID card. | was nervous because

| did not know exactly what the police wanted with

me, and | was afraid they would recognize me. | gave

my ID to the officer and he walked across the road

with it. Another officer attacked me in the head with

the butt of his gun or some type of stick - I did not see

what he hit me with. I fell to the ground and the

officer kicked me all over my body. I was rolling

around on the ground in pain, and there was blood

everywhere due to a scrious head wound I had

suffered. The guard who attacked me laughed and

insulted me with the remark that my blood was only

water, and that | could just drink more water to

replenish it. 1 was afraid that I was going to die from

the loss of blood. A different officer saw all the blood

and escorted me to a nearby clinic, but it was closed,

so he gave me back my ID and told me that was all

he could do. Then he left me there and walked away.

I had to walk home alone and treat the wound myself

with iodine and bandages. I had to shave my head

because the wound was so bad.

9. In April 1993, I attended the All Anglophone

Conference (“AAC1”) held at Mt. Mary Catholic

Maternity Hall in Buea, South West Province,

organized by the All Anglophone Movement. I lived in

Yaoundé at the time, so I traveled to Buca by bus. At

the conference, I distributed conference papers,

ushered attendees, and helped to form a human

shicld around the conference leaders. Anglophones

who wanted Paul Biya to begin a dialog with them

called for a return to the 1961 federal structure of

Cameroon within a certain timeframe.

Sla

10. On May 1, 1994, I attended the Second All

Anglophone Conference (“AAC2”) organized by the

All Anglophone Movement and held at Big Mankon

Catholic Primary School in Bamenda. The purpose of

the conference was to call for the independence of

Southern Cameroons because the Biya regime had

ignored the call at AAC1 for a return to the

legitimate 1961 federal structure. I participated by

arranging the facility, distributing conference papers,

and escorting and protecting leaders. The Southern

Cameroons National Council (““SCNC”) was officially

formed at AAC2. I did not officially join the SCNC at

that time because I| had not yet felt the calling to join.

However, I sympathized strongly with the cause and

participated in SCNC activities and demonstrations.

11. As a result of my SCNC affiliation, the police

harassed me on numerous occasions. One time, police

stopped the bus I was traveling in from Yaoundé to

Bamenda, and singled me out of all the passengers.

They called me off the bus and took my ID card. The

officers interrogated me about my identity - they

wanted to know if I was really Joseph Afanwi, as my

ID said. They asked where | was coming from, where

I was going to, and why. They ordered the bus to

leave without me and forced me to wait for the next

bus. On another occasion, the police stopped the taxi

I was in with four or five others. Once again, they

singled me out and made me get out of the taxi. They

took my ID, interrogated me, and told the taxi to

leave. I was terrified that I would be arrested.

However, they just harassed and delayed me with

their questions. I had to wait for another taxi.

92a

12. I also suffered discrimination because of my

association with the SCNC. There are no private

employment opportunitics in the Anglophone

provinces of Camcroon, so I had no choice but to work

for the government. Still, | could not get a

government job. After my high school graduation, I

applied to be a government teacher but the

government denicd my application. | needed money

to support my family, so 1 applied to the military.

When [ submitted the application, a government

official told me to go ask the SCNC for a job. Again,

the government denied my application despite my

having received strong physical and medical test

scores. I knew I had strong scores because there was

an Anglophone member on the jury that gave out

government jobs, and rumors got back to me that I

had good scores. The discrimination depressed me

because I had an education but still might never have

the opportunity to work and support my family.

13. Because I could not work, I instead chose to

attend the University of Yaoundé. It was difficult to

be admitted to the University, as the Admission

Board would only speak to applicants in French, and

my French was very limited at that time. My mother

paid my tuition and I majored in history. [It took me

five years to earn my B.A. because so few classes

were offered in English. I ended up having to take

several courses in French even though French is not

my native language. I studied with Dr. Emmanuel

Chiabi, an Anglophone history professor who taught

me more about the Francophone government’s

betrayal of the promises made at the time of

Cameroonian independence. As part of Dr. Chiabi’s

class, | wrote a paper on John Ngu Foncha, an

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Anglophone sccessionist and the Anglophone former

Prime Minister of West Cameroon, the Anglophone

state under the defunct federal structure. I visited

Mr. Foncha at his home in Bamenda and talked to

him about the Anglophone situation. My knowledge

of the Anglophone experience in Cameroon grew, as

did my commitment to the SCNC.

14. I founded and served as Coordinator for the Civil

Rights Empowerment Group (“CREG’”) in the village

of Akum. CREG was an organization of high school

and university students and graduates that educated

youths about their civil rights. On May 19, 1994, I

organized a rally at Akum Market Square to urge the

youths to boycott the May 20 government activities

that marked the day of our enslavement. It was a day

of enslavement because it was the day the

Francophones annexed Anglophone Southern

Cameroons, leaving Anglophones without their

freedom. I left the rally alone but realized that threc

police officers were following me. They tried to act as

if they were not following me, as if they were just

strangers. They caught up with me and one of them

said something in French. I did not quite understand.

All three of the officers began to beat me on the head,

face, and elsewhere on my body. My head and nose

bled profusely. I tried to fight back but I was

outnumbcred. | felt sure that this time around they

would beat me to death and abandon my corpse on

the road. The officers warned me to stop organizing

rallies and left. I lay on the ground for a while and

then walked home. My mother worried that I might

have internal bleeding, so she took me to the doctor

in Mbengwi.

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15. By early 1997, I had grown to suspect that | was

being watched and monitored by the Biya regime. I

had been meeting regularly with other SCNC leaders

and felt certain I had been scen by the police. Fellow

SCNC leaders told me horrible stories of what

happened to activists in prison. | wanted to have my

name in the SCNC records in case anything

happened to me. Thus, I realized my dangerous

situation and felt the calling to officially join the

SCNC. I paid 500 francs for my membership card at

the office of the SCNC sccretariat in Bamenda. I

officially joined as a Youth League member and

became Youth Coordinator for Akum Village. As

Youth Coordinator, I organized rallics under the

supervision of the Northern Zone Chairman, Mbinglo

H. Humphrey. We had monthly meetings with the

SCNC executives. Mr. Humphrey gave me agendas

for mectings and I debricfed Mr. Humphrey when

meetings ended.

16. On March 28, 1997, a group of armed civilians

attacked the Bafut, Kumbo and Bamenda police

stations in the North West Province. The SCNC had

nothing to do with these attacks. However, the Biya

regime blamed the SCNC because the regime felt

threatened by the SCNC and used the attacks as a

pretext to punish SCNC membcrs.

17. On April 5, 1997, I was home for Easter break. At

this time, I was a part-time student at the University

of Yaoundé and traveled regularly betwcen Akum

and Yaoundé. Around six o'clock in the morning, |

heard a knock on the door of my mother’s house. We

had all been sleeping, but 1 went to answer the door.

I opened the door to find four Francophone police

95a

officers who entered the house and told me I was

under arrest. They brandished a warrant but I did

not have enough time to read it. I asked why I was

being arrested but the officers would not answer me.

They handcuffed me and kicked and slapped me. My

screaming woke my mother and cousin who rushed

into the room. One of the officers slapped my mother

and forced her to sit on the floor, telling her to be

quiet. My cousin was also forced to sit on the floor.

The officers searched the house and took my SCNC

membership card and other SCNC-related materials

such as tracts and letters from the Northern Zone

Chairman. They took me outside and sandwiched me

in the back seat of a taxi between two officers, with

the other two in the front seat. They drove me to Old

Town Bamenda Public Security Police Station. I was

terrified about going to prison and about what the

police were going to do to me there. In the general

office, they registered my namc, my address, and the

names of my parents. While I remained helpless and

handcuffed, the officers beat me in the general office.

They kicked me in the head and stomach, trampled

on my legs and feet with heavy boots, and beat the

sales of my feet. They removed my handcuffs and

forced me to strip naked. I felt terrified because I

thought for sure they were going to kill me.

18. The officers took me to a narrow cement cell with

three walls and an iron gate. The cell was very dirty

and dark and had no bed or blankets. All that was in

the cell was a dirty bucket for excrement. The police

beat me again in the cell. I slept on the floor although

it was very cold at night. The next morning, an officer

called me out for interrogation. He took me alone to

another room where a single officer waited. The

96a

officer asked me if I knew why I had bcen arrested. |

said no and he laughed and told me they had

arrested me because of my involvement with the

SCNC. He asked me where I was on March 28 and

March 29. I responded that [ had heen in Yaoundé.

He asked why I had been in Yaoundé and I told him

that I attended the University of Yaoundé. He asked

me many other questions that I do not remember. |

only remember bcing terrified that once they got

answers to thcir questions, ‘hey would kill me. The

officer forced me to promise that | would no longer

participate in the SCNC if | were releascd. |

promised because | had no other choice. After the

interrogation, an officer took mc to another room and

gave me small amounts of bread, water and ricc. |

had gone over twenty-four hours without food or

water. ‘hey took me back to my cell.

19. Every morning the guards would conduct what

they called “morning cafe,” or morning coffee. As I lay

on the ground naked, defenseless and weak from lack

of food and water, they restrained me, beat the soles

of my fcet with their rubber batons, trampled on my

feet and legs, and kicked me in the back, head,

abdomen, butt, and genitals. They hit me in the head,

legs, and on the rest of my body with the butts of

their guns. After beating the soles of my fect, they

forced me to walk and jump on sharp gravel while

singing anti-SCNC songs as they watched and

laughed. I was naked this entire time. Whenever they

did these things to me, I tried to tell myself it was

just a dream, and that afterwards everything would

be okay. I spent afternoons doing forced labor such as

mopping, weeding, dusting tables, and emptying

trash. They gave me only small daily rations of food

97a

and water. When I was not doing chores, I spent the

time alone in my cell. I often heard screaming from

the direction of the general office. 1 tried to stay

hopeful but feared every day that I would be killed or

disappear. I prayed a lot — God was my only

consolation. I prayed for his will to be done in my life.

I thought about the Old Testament’s Book of

Ecclesiastes, Chapter Three, which says there is a

time for everything, including death. I also recalled

The Book of Psalms, Psalm 23 - “The Lord is my

Shepard, there is nothing I lack.”

20. On April 10, 1997, the police beat me so badly

that I lost consciousness. I awoke on the morning of

April 11 in the Bamenda Provincial Hospital. The

police had abandoned me there, I think to die. I felt

very sick and my testicles were so swollen that I

could not walk or stand up straight. My mother

arrived by taxi and took me to the Mbengwi Health

Center. We left Bamenda because I was scared that

the police would come back to check on me. I

permanently lost one of my testicles as a result of the

beatings I suffered. Losing my testicle was a horrible

experience because I worried that I would never bear

children and have a family. I was in the hospital from

April 11 until April 15. At the end of April I returned

to Yaoundé but stayed very low-key because I felt the

presence of the government everywhere I went. When

I did go to Akum, I traveled at night or in the early

morning.

21. Despite the torture | suffered in prison, | did not

end my SCNC activism because I believed then, and

still believe, that the greatest encouragement is

awareness. As soon as I was no longer ignorant about

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the marginalization of Anglophones, I could not just

stand by and do nothing. The conviction and desire to

bring about change were a part of who I was. | was

willing to sacrifice for the cause of Anglophone

independence. | knew that my sacrifice would benefit

others, and that if I were not the one to sacrifice,

someone clse would sacrifice in my place.

22. On September 27, 1999. I chaired a Southern

Cameroons Youth League meeting at Akum

Government Primary School Hall in Akum. There

were nineteen other attendees, including Charlie

Mukom, the Secretary of the Youth League in Akum,

and John Akuroh, the Vice President of the Youth

League in Akum. Around five o'clock in the evening,

while 1 was at the pulpit talking to the crowd,

approximately five police officers entered and others

surrounded the building. The officers ordered the

meeting to end and confiscated all of our SCNC

papers. Onc officer spoke into his hand held radio

and a black police truck arrived. The officers ordered

all twenty of us onto the truck. We had to get on

because there was no way to escape. The police took

us to Bamenda ([rovincial Public Security

Headquarters. They never told us why we were being

arrested nor did they show us a warrant.

23. The police registered our names then separated

the men from the women. There were cleven women

and nine men. They forced us to strip naked and then

beat us. I was kicked allover my body and beaten on

the soles of my feet. Then I was put into a small, dark

cell with the other cight men. The only thing in the

cell was a bucket. The officers threw cold water on

our naked bodics and the floor of the cell to prevent

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us from sleeping. On the second day, all nine of us

stayed in the cell all day. They did not giv2 us any

food or water that entire day. On the third day, they

took us out of the cell one-by-one for intcrrogation.

They took me first because they believed I was the

group leader, as I had been speaking at the pulpit

when they arrived at the meeting. The senior officer

interrogated me in English. He wanted to know my

name, where I was arrested, if I knew why I was

arrested, what the purpose of the meeting was, what

we were doing at the meeting, who organized the

meeting, and other questions that I do not remember.

1 cooperated because I felt I had to, since the police

had confiscated SCNC materials from us at the

meeting. After the interrogation, which lasted about

an hour, they finally gave me rice, dry bread and

water for the first time in two days.

24. On many mornings, the police officers beat me as

part of morning cafe. Because the police believed I

was the group leadcr, they beat me longer and more

often. I also did forced labor as I did during my last

imprisonment. On about the tenth day of my

imprisonment, a guard taunted and terrorized us

with the news that they planned to transfer us to

Nkondengue Maximum Security Prison in Yaoundé.

After hearing this, I feared I might never see or hear

from my family again. I also feared that if I were

killed, my remains might never been returned to my

family, as happened to so many others. SCNC leaders

had told me of the reputation of Nkondengue and told

me storics about people just disappearing at

Nkondengue, or being killed in transit, or being

starved to death. I felt panicked and trembled a lot.

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All I could do was pray and depend upon the Lord to

use me for His purpose.

25. A friend of my uncle’s was a prison guard. My

mother told me later that he warned my uncle, Tafor

Fidelis, about the pending transfer. After learning of

the pending transfer from my uncle, my mother made

a desperate and dangerous attempt to save my life.

She and my uncle went to the guard’s home, where

my mother wept and begged him to spare her son.

Because he was a family friend, the officer agreed to

help. The guard told her that he would let me escape

and would write a falsified report. But he warned my

mother that if I were ever scen by the police I would

be shot on sight as a prison escapee. Around 3:30 in

the morning on October 9, 1999, the guard called me

out of my cell and told me to run in a certain

direction. | ran but thought I was going to be shot in

the back. However, as | was running, I heard my

mother’s voice from the darkness. I ran toward her

voice and found my mother and uncle waiting with

my uncle’s Toyota Camry. We drove that night to

Mbengwi while [ hid on the floor of the car.

26. My mother and uncle took me to live in hiding at

the Presbyterian Mission in Mbengwi, in the interior

of Bamenda. It was about an hour’s drive, on rural

dirt roads. My uncle chose the church as my hiding

spot because Mbengwi is very rural and the police

would have no reason to look for me there. Also, I had

been active at the Mbengwi Mission when I attended

high school in Mbengwi. While | was in hiding, I

stayed indoors during the day. | lived with Pastor

David Tende in his home on the Mission grounds.

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Only the pastor and the church session (elders), of

which there were ten members, knew I was in hiding.

27. I stopped participating in SCNC activities out of

fear. Instead, Pastor David Tende trained me to

evangelize. He taught me to read and interpret the

Bible, to write sermons, and to preach. I dedicated

my life to God. For two years | traveled occasionally

at night with Pastor Tende to evangclize. I knew it

was risky to leave the Mission but I felt called by God

to deliver his teachings. Pastor Tende and I went to

very remote locations and villages, where no one

would know me. I was known as Evangelist Joseph -

my last name was never given. ‘he pastor and |

would travel by car as far as we could and then get

out and walk when the roads ended. We went to

remote enclave areas such as Mbomi and Acha and

only preached to ten or fifteen people at a time via

interpreters.

28. In October of 2001, the police hunt for me and

other SCNC leaders intensified. This occurred after

the October 1, 2001 demonstrations for the forticth

Independence Day for Southern Cameroons. |

obviously did not attend, but later heard that threc

peaceful Southern Cameroonian demonstrators were

killed and over one hundred arrested. These

demonstrations angered the Biya regime, and the

police began to crack down once again on SCNC

members and leaders.

29. On February 25, 2002, I married Quinta Bih

Tanda in Andek-Ngie. We had known each other for a

long time, as she is also from the Bafut tribe. The

102a

wedding was cxtremcly small, with only a few

witnesses. We felt safe marrying there because it was

such a remote location. | also wanted to gct married

becausc it was important to me and because I loved

my wife deeply. Our marriage was a sign of our

commitment and love for cach other. After our

weddiny day, I returned to hiding in Mbengwi while

my wife continued her studies in Ngic.

30. Around March 25, 2002, the police left a

summons at the home of my mother. This summons

scared me because I knew that the police really were

looking for me.

31. The October 2001 crack-down and thc police

summons scared me and | began to formulate a plan

to flee to Nigeria. The church suggested I go to the

United States instead because Camcroonian security

forces were known to cross the Nigerian border to

look for dissidents and cscapces. As an opportunity to

escape, the church sclected me to represent the

church at a conference in Montreat, North Carolina.

The Silver Spring Presbyterian Church paid for my

flight to the United States. Pastor David Tende got

me my passport. He brought me the passport and I

signed it where the plastic cover had been cut away.

On July 15, 2002, I traveled to Yaoundé at night. On

July 16, I had an interview with a U.S. consular

officer. I was truthful with the officer about my intent

to return to Cameroon because at that point I did not

know about asylum and did not think I would be

staying in the United States for longer than six

months. | received a six-month B-1/B-2 visa from the

U.S. Embassy and returned to Mbengwi that same

day.

103a

32. My family contacted a family friend, a police

commissioner named QOumarou who worked at

Douala International Airport to ask for his help in

getting me through the airport security checkpoints.

On July 20, I traveled to Douala International

Airport. Oumarou escorted me through all five

checkpoints to my departure gate. Because I was

with a senior officer, no one stopped me or asked me

any questions. I took Air France flight #843 to

Charles de Gaulle International Airport in Paris,

France. In Paris, I transferred to Air France flight

#28 to Dulles International Airport. I had no contact

with French immigration or customs authorities

since | was only in France for a few hours as a transit

passenger. I arrived in Washington, D.C. on July 22,

2002. I was admitted into the United States as a B-2

visitor until January 21, 2003.

33. I spent my first night in the United States at the

Silver Spring Presbyterian Church. The next day we

drove to and attended the conference in Montreat,

North Carolina from July 23 through July 27. We

returned to Silver Spring on the evening of July 27. It

was a very long drive. I stayed at the Church when

we returned to Silver Spring and the Church

ultimately invited me to stay until January 21, 2003.

The Church and I both thought I was staying for six

months. I still intended to return to Cameroon when

the six months had passed. I hoped that the situation

in my country would calm down by that time, as

things are always up and down. I consider the people

at my Church to be my family. I have an especially

close relationship with my pastor, Currie Burris. We

talk and pray together often. I have not worked in the

United States. Instead, I have only helped people in

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need by doing small chores like cleaning, raking

leaves, mowing lawns and shoveling snow. Though I

have received tips from these chores, I am primarily

supported by the church and members of the

congregation.

34. On July 28, 2002, my daughter Mildred was born

in Akum. I have never seen her and she has never

seen her father. I left Cameroon only a weck before

her birth becausc my family and | felt I could not

pass up the opportunity to get out of danger for a

while. I love my wife and daughter very much and

miss them all the time.

35. On August 2, 2002, very soon after my arrival in

the United States, I joined the North Amcrican

chapter of the SCNC and began to participate

actively in the organization. I joined because I was

curious to see what the North American chapter was

like and because I have such strong convictions that I

will have to be a part of the SCNC no matter whcre

in the world | am. There are about twenty or twenty-

five others who attend bimonthly mcetings with me.

We mcct in the Takoma Park public library and other

public locations. The organization is funded by

donations and organizes events such as protests

outside the Cameroonian embassy here in

Washington, D.C. The SCNC North America website

even has a picture of me at onc of the protests. I am

worried that the Camcroonian government may know

| am here in the United States if they have been

monitoring the webpage. If they have, it is very likely

they have listed my name with the airport police in

case I try to return to Cameroon.

105a

36. After my arrival in the United States, I learned

that prominent SCNC leaders like Nfor Nfor, Chief

Ayamba, and Enow John were arrested along with

Albert Mukong, the leader of the Human Rights

Defense Group. On October 28, 2002, I received a

letter from my mother dated October 7 and

postmarked October 8. In her letter, my mother told

me that the situation at home was dangerous because

the police were still actively looking for me. She told

me that on August 7, 2002, police officers went to my

mother’s home searching for me. They asked my

mother and wife where I was hiding. My mother told

them that she did not know where I was, that I had

disappeared while she was at the hospital with my

wife giving birth to the baby. The police kicked my

mother in the leg and she fell to the ground, receiving

a wound on her arm. The police also hit my wife in

the jaw. They wanted to arrest my mother until she

revealed my hiding spot, but our neighbors

intervened and convinced the police that my mother

needed to be with my wife and newborn baby because

they had just returned from the hospital and my wife

could not manage on her own. The police told my

mother that my family would not rest until police

found and executed me. My wife and mother fled

from Akum to Bafut in order to hide from the police.

37. | am very worried about the safety of my family.

Every time I lay down, I worry about them. I have

trouble sleeping, and when I do fall asleep I have

nightmares about the tortures I suffered in prison.

When I am awake, I miss my family terribly and

worry that I may never sce them again.

106a

38. After receiving my mothcr’s letter, I realized that

the government meant business this time. I talked to

friends at church, who told me about the possibility of

asylum. My mother sent over all of my documents

with a friend who was traveling to the United States.

39. Since my escape from Cameroon, I have learned

that the Southern Cameroons Youth League, because

of a rogue leader, now advocates violence as an

appropriate means to achieve independence. When I

was a member of the League, it did not support the

use of violence. I personally would never use violence

or advocate its use as a part of the SCNC cause.

40. Although I had once hoped to return to

Cameroon, I now know that | will not be able to

return until there are changes in government or until

Southern Cameroons has independence. | hope to

start a new life here and remain active with the

SCNC. I also hope to bring my wife and baby

daughter over to the United States if | am granted

asylum. They are my whole life and I miss them

horribly. 1 would like to go into either nursing or go

to seminary. I would also someday like to teach,

especially Cameroonian history. If reform ever comes

to Cameroon, I would contribute Lo rebuilding my

country.

I hereby affirm, under penalty, that the foregoing is

true and correct to the best of my knowledge,

information, and belief.

107a

/s/ Joseph Afanwi 10th-23rd-03

Joseph Afanwi Date

Subscribed and sworn before me on October 23, 2003

/s/ n G. Bouton

Notary Public

Karen G. Bouton

Notary Public,

District of Columbia

My Commission Expires

December 14, 2005

108a

THE UNITED STATES DEPARTMENT OF

JUSTICE

IMMIGRATION AND NATURALIZATION

SERVICE

ARLINGTON ASYLUM OFFICE

AFFIDAVIT OF JOSEPH AFANWI

I, Joseph Afanwi, I am a native of Bafut village in the

North west province of the Republic of Cameroon. I

was born on the 11/22/ 71, in Bafut of Mr Joseph

Angwafor Wessi [deceased] and of Beatrice Angwafor.

I have one brot

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