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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0439%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2008

## Text

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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.

6a

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.

7a
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).

8a

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

9a

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

19a

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 woun

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA43085015_0439%3A2. Public record. Not legal advice.