                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-25-2005

Ayefou v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3486




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                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                   __________

                                       No. 04-3486
                                       __________

                           AFOUA AMETOWOYO AYEFOU,
                                            Petitioner,

                                            vs.

                              ALBERTO R. GONZALES,1
                          Attorney General of the United States,
                                                       Respondent.
                                     __________

                         On Petition for Review of an Order of
                           the Board of Immigration Appeals
                               U.S. Department of Justice
                        Executive Office for Immigration Review
                                (BIA No. A95-362-737)
                                      __________

                                Argued November 7, 2005
                                     ___________

                 Before: ROTH, FUENTES, and GARTH, Circuit Judges

                           (Opinion Filed: November 25, 2005)




       1
        Attorney General Alberto Gonzales has been substituted for former Attorney General
John Ashcroft, the original respondent in this case, pursuant to FED . R. APP . P. 43(c).

                                             1
Derek W. Gray [ARGUED]
Steel, Rudnick & Ruben
1608 Walnut Street
Suite 1500
Philadelphia, PA 19103
              Counsel for Petitioner

Peter D. Keisler
Anh-Thu P. Mai [ARGUED]
Mary Jane Candaux
Jacqueline R. Dryden
William C. Peachey
Mark C. Walters
Linda S. Wernery
Office of Immigration Litigation
United States Department of Justice, Civil Division
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
              Counsel for Respondent

                                       __________

                              OPINION OF THE COURT


Garth, Circuit Judge:

      Afoua Ametowoyo Ayefou (“Ms. Ayefou”) challenges a decision of the Board of

Immigration Appeals (“BIA”) affirming the denial by an Immigration Judge (“IJ”) of her

application for asylum, withholding of removal, and relief under the U.N. Convention

Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. §1252. We will deny the

Petition for Review.

                                           I.

      In the affidavit she submitted with her application, and at her March 17, 2003

                                           -2-
hearing before the IJ, Ms. Ayefou testified to the following:

       In her native Togo she was a store owner, and a member of (and later local

coordinator for) an opposition political party known as the Union of Forces for Change

(“UFC”). Her husband was the General Secretary of the ruling political party, the Rally

of the Togolese People (“RTP”), and was not aware of Ms. Ayefou’s work with the UFC.

When, on March 25, 1999, Ms. Ayefou’s husband learned of his wife’s work with the

UFC, he beat her in front of their children.

       Ms. Ayefou was hospitalized for three days after the beating. During this time,

Ms. Ayefou’s parents tried to see their grandchildren, but her husband forbid it, telling

them that their grandchildren no longer “belonged to” Ms. Ayefou. When she was

discharged from the hospital, Ms. Ayefou was not able to locate either her husband or her

children. She reported her beating and the disappearance of her children to the police, but

they did nothing.

       In February or April of 1999 or 2000 (the record contains conflicting information),

Ms. Ayefou was served with an arrest warrant at her store. She went with the server to

the police precinct, where she was questioned about a meeting/demonstration in which

she had participated, beaten for approximately two minutes, and held for three days with

two other women (also UFC members) in an extremely small cell.

       No formal charges were brought against Ms. Ayefou. Before she was released

from custody, however, the police informed her that they might call her back to the



                                               -3-
precinct. Ms. Ayefou believed her husband, because of his influence in the RPT, was

behind her arrest and detention. Upon her release, she went into hiding.

       About two weeks later a second warrant for Ms. Ayefou’s arrest was served on her

brother, who delivered the warrant to Ms. Ayefou in hiding on April 18, 1999 (or 2000).

The warrant instructed her to report to the police precinct, but instead Ms. Ayefou fled to

a village. She believed her life was in danger, so she made the decision to leave Togo.

       Ms. Ayefou obtained a passport through the brother of a friend who worked at the

passport office. With the help of her church pastor, she then applied for and was granted

a B-1 visa to travel to the United States in order to attend a commercial expo in New

York. She left Togo on December 6, 2000, traveled to Ghana by foot, and from there

flew to the United States. Ms. Ayefou entered the United States on December 8, 2000

with authorization to remain in the country until March 7, 2001. She remained beyond

the authorized date.

       Ms. Ayefou filed an application for asylum in November 2001, claiming she had

suffered persecution in Togo on account of her political opinion, and that she feared

future persecution on the same basis should she be returned to that country. The INS

Asylum Office found Ms. Ayefou not credible, and referred her application to the

Immigration Court. The INS commenced removal proceedings against her on April 1,

2002. She conceded removability, but renewed her request for asylum,2 and indicated

       2
        An application for asylum is deemed to include an application for withholding of
removal. 8 C.F.R. §1208.3(b).

                                              -4-
that she would also be seeking protection under the CAT and voluntary departure.

       On March 20, 2003, the IJ granted Ms. Ayefou voluntary departure but, finding her

not credible on several important points, denied her other applications. The IJ believed

Ms. Ayefou’s testimony that her husband took her children and refused to allow her

parents to have any contact with them. On the other material issues about which Ms.

Ayefou testified, however, the IJ found her not credible.

       For example, the IJ did not believe that Ms. Ayefou was an active member of the

UFC because her description of both that party and the RPT was vague and characterized

by generalities. The IJ noted that Ms. Ayefou could have obtained a letter from a UFC

member confirming her membership in the party, but did not. What few documents Ms.

Ayefou did submit to the court to demonstrate that she was affiliated with the UFC – a

blank membership booklet and a newspaper article that did not mention Ms. Ayefou

specifically – did not corroborate her contention to the IJ’s satisfaction.

       Moreover, the IJ found it suspicious that Ms. Ayefou was able to come out of

hiding and obtain a passport and visa to travel to the United States without being

apprehended by a government that was supposedly pursuing her. The IJ was also

troubled by the fact that Ms. Ayefou’s passport contained a January 2001 date stamp,

though she arrived in the country on December 8, 2000.

       Ms. Ayefou appealed the IJ’s ruling, and the BIA affirmed on July 30, 2004. It

agreed with the IJ’s adverse credibility determination, but also stated that Ms. Ayefou’s



                                             -5-
application foundered on the additional ground that the incidents she allegedly endured

were not so severe as to warrant a finding of past persecution. This timely appeal

followed.

                                              II.

       Where, as here, the BIA substantially relies on an IJ's adverse credibility

determination, we review the IJ’s opinion as well as the BIA’s opinion. He Chun Chen v.

Ashcroft, 357 F.3d 215, 222 (3d Cir. 2004). Asylum applicants have the burden of

supporting their claims with credible testimony. Gao v. Ashcroft, 299 F.3d 266, 272 (3d

Cir. 2002) (citing Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001)). “Because an

applicant's testimony may alone be sufficient to meet his burden if it is found credible, 8

C.F.R. § 208.13(a), where the applicant is the only testifying witness, much depends on

what the applicant says and how he says it. Consequently, the IJ's evaluation of the

applicant and his testimony, generally referred to as a ‘credibility determination,’ is of

paramount importance, and, given that the IJ has the opportunity to observe the applicant

as he gives his testimony and is experienced in the work entrusted to the agency, the IJ's

evaluation is typically given great deference by an appellate court reviewing a cold record

on any subsequent appeal.” Jishiashvili v. Attorney General of the U.S., 402 F.3d 386,

392 (3d Cir. 2005). An adverse credibility determination is a finding of fact, and

“administrative findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.” 8 U.S.C. §1252(b)(4)(B). See also Dia v.



                                             -6-
Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).

                                              III.

       After close review of the record, we find that substantial evidence supports the IJ’s

determination – adopted by the BIA – that Ms. Ayefou was not credible on several of the

issues that go to the heart of her application. We acknowledge the sense of some of Ms.

Ayefou’s arguments on appeal, particularly the argument that she relied on the help of an

“insider” – a friend’s brother who worked at the passport office – to obtain her passport,

so the fact that she obtained that passport without being seized by government officials is

perhaps less incredible than the IJ seemed to think. Nevertheless, we cannot say that “any

reasonable adjudicator would be compelled to conclude” that Ms. Ayefou was credible

based on the record before us. We will thus affirm the denial of Ms. Ayefou’s

application, and deny the Petition for Review.

       Because we deny the Petition for Review on the basis of the IJ’s adverse

credibility determination, we need not express an opinion on the independent basis for

denial the BIA raised, i.e., that the incidents Ms. Ayefou suffered do not rise to the level

of “persecution.”




                                              -7-
