                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1561




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                                             NOT PRECEDENTIAL

     UNITED STATES COURT OF APPEALS
          FOR THE THIRD CIRCUIT


                  No. 04-1561




             KADIATOU CAMARA;
              MIRIAM CAMARA;
              KHADY CAMARA,

                       Petitioners

                       v.

       JOHN ASHCROFT, Attorney General
             of the United States,

                        Respondent




ON PETITION FOR REVIEW OF ORDERS OF THE
     BOARD OF IMM IGRATION APPEALS

  (Nos. A95-825-392, A95-825-393, A95-825-394)


           Argued September 15, 2004

Before: ALITO, AMBRO, and FISHER, Circuit Judges

       (Opinion Filed: September 30, 2004)


               NANCY WINKELM AN (Argued)
               ELIZABETH K. AINSLIE
               BRUCE P. MERENSTEIN
                                  Schnader Harrison Segal & Lewis LLP
                                  Suite 3600, 1600 Market Street
                                  Philadelphia, PA 19103

                                  JUDITH BERNSTEIN BAKER
                                  AYODELE GANSALLO
                                  HIAS and Council Migration Service of Philadelphia
                                  2100 Arch Street, 3rd Floor
                                  Philadelphia, PA 19103

                                  Counsel for Petitioners

                                  THOMAS K. RAGLAND (Argued)
                                  PETER D. KEISLER, Assistant Attorney General,
                                  Civil Division
                                  PAPU SANDHU, Senior Litigation Counsel
                                  U.S. Department of Justice
                                  Civil Division
                                  Office of Immigration Litigation
                                  P.O. Box 878
                                  Ben Franklin Station
                                  Washington, D.C. 20044

                                  Counsel for Respondent




                              OPINION OF THE COURT




PER CURIAM:

      Kadiatou Camara and her two daughters 1 petition for review of final orders of the


      1
        We assume that Miriam (spelled “Mariam” in several places in the record) and
Khady Stephanie Camara may both file applications derivative of their mother’s
application, despite our doubts whether Khady, who was informally adopted by Kadiatou,
qualifies as a derivative applicant. See Immigration and Nationality Act § 208(b)(3)(A),

                                           2
Board of Immigration Appeals (the “Board”) denying their applications for asylum and

withholding of removal. Because we write solely for the parties, we do not recite the

underlying facts, which are set forth in the order of the Immigration Judge (“IJ”) dated

August 8, 2003. We conclude that the Board’s decision was supported by substantial

evidence, and we deny the petitions.

                                             I.

       We review the Board’s denial of an application for asylum to determine if it is

supported by substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 247 (3d Cir. 2003) (en

banc). Under this standard, the decision of the Board may be reversed “only if the

evidence presented by [the applicant] was such that a reasonable factfinder would have to

conclude that the requisite fear of persecution existed.” INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). In other words, “the BIA’s finding must be upheld unless the evidence

not only supports a contrary conclusion, but compels it.” Abdille v. Ashcroft, 242 F.3d

477, 483-84 (3d Cir. 2001).

       The Attorney General may grant asylum to an alien who demonstrates that she is

unable or unwilling to return to her native land because of a “well-founded fear” of

persecution. See Immigration and Nationality Act (INA) §§ 101(a)(42)(A), 208(b)(1), 8

U.S.C. §§ 1101(a)(42)(A), 1158(b)(1) (2000); 8 C.F.R. § 208.13(b) (2004); Abdille, 242


8 U.S.C. § 1158(b)(3)(A) (2000). Since the record contains no evidence that Miriam and
Khady would be “otherwise eligible for asylum,” id., we focus our energies on Kadiatou’s
application, assuming that the success of Miriam’s and Khady’s applications depends on
hers.

                                             3
F.3d at 482. A “well-founded fear” must be both subjectively genuine and objectively

reasonable. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d Cir. 2003). We have held that

“persecution” includes “threats to life, confinement, torture, and economic restrictions so

severe that they constitute a real threat to life or freedom,” but does not amount to “all

treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional.”

Lukwago v. Ashcroft, 329 F.3d 157, 168 (3d Cir. 2003) (internal quotation marks and

citations omitted).

       Camara argues that the Board’s decision was not supported by substantial evidence

because her testimony and the country reports she submitted both showed that members

of her political party, the RDR, were being targeted for violence and detention by the

country’s ruling government. She further testified that she feared for her life after the

government’s “anti-riot brigade” (the “BAE”) had twice visited her house in the middle

of the night. The IJ deemed this testimony “above reproach,” finding it “credible,

persuasive, and specific.” Administrative Record (“A.R.”) at 72. Since Camara testified

that her life was in danger and the IJ found this testimony credible, she argues that a

reasonable factfinder would be compelled to find that she had a “well-founded fear” of

persecution.

       We disagree. It does not follow from a finding of credibility that Camara was

eligible for asylum based solely on her testimony. Testimony may want for more than

credibility. A reasonable factfinder may credit a witness yet still discount her testimony



                                              4
as speculative or hearsay, and even testimony without these limitations must meet the

basic requirement of alleging facts that would entitle the applicant to relief. The BIA’s

decisions have distinguished between claims that fail for lack of credibility and claims

that fail because testimony, while credible, failed to satisfy an applicant’s burden of

proof. See Abdulai v. Ashcroft, 239 F.3d 542, 551 n.6 (3d Cir. 2001) (citing In re S-M-J,

21 I. & N. Dec. 722 (BIA 1997)).

       Camara’s testimony, if credited, may compel the conclusion that she genuinely

feared persecution, but it does not compel the conclusion that this fear was reasonable.

Although she testified that government agents would arrest and kill her because of her

membership in the RDR, see A.R. at 155, she offered no evidence as to how commonly

RDR members were persecuted or whether she was similarly situated with those who had

been. The State Department’s 2002 Country Report on Cote d’Ivoire actually suggests

that a relatively small number of people had been targeted. See A.R. at 379-80 (reporting

that in a country with a population of 16 million, “more than 200 extrajudicial killings”

and “several” disappearances had occurred). While these facts might permit the

conclusion that Camara’s fear of persecution was reasonable, we do not believe they

compel it.

       Nor do we believe this conclusion was compelled by Camara’s testimony about the

BAE. According to her, BAE agents had twice arrived on her doorstep in the middle of

the night and demanded entry. A.R. at 148-49. She also testified, however, that BAE



                                              5
agents had done the same thing to others in her neighborhood who belonged to the RDR,

see A.R. at 149, yet she offered no evidence that any of them had suffered violence at the

BAE’s hands. As the IJ observed, the BAE agents always left her house without incident,

even though Camara was a well-known RDR member who may have been denounced by

her husband. See A.R. at 72. Based on this testimony, a reasonable factfinder could

conclude that her fear, though genuine, was not reasonable. The decision to deny her

application was thus supported by substantial evidence.

                                             II.

       Since the denial of Camara’s asylum application was supported by substantial

evidence, it follows that the Board’s decision to deny withholding of removal under the

INA must be upheld as well. See Lukwago, 329 F.3d at 182 (“If [petitioner] is unable to

satisfy the standard for asylum, he necessarily fails to meet the standard for withholding

of removal under INA § 241(b)(3).”). We also believe a reasonable factfinder could

conclude that Camara had failed to show that it was “more likely than not” that she would

be tortured if removed to Cote d’Ivoire. See id. at 182-83. The Board’s decision to deny

her application for withholding of removal under the U.N. Convention Against Torture

therefore must be upheld.

                                            III.

       After thoroughly examining the record and exploring the issues at oral argument,

we conclude that substantial evidence supports the Board’s decision to deny the



                                             6
petitioners’ applications for asylum and withholding of removal. The petition for review

is accordingly denied.
