                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1967




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                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-1967


                            EWANGE EPHRAIM MBUBE,

                                                 Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES,

                                                 Respondent


                      On Petition for Review from an Order of the
                            Board of Immigration Appeals
                           (D.C. No. 0313-2: A98-273-266)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     June 4, 2007

                           BEFORE: SMITH and COWEN,
                             and SILER*, Circuit Judges

                                  (Filed: June 18, 2007)




*Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge, U.S. Court of
Appeals for the Sixth Circuit, sitting by designation.
                                         OPINION


COWEN, Circuit Judge.

       Ewange Ephraim Mbube, a native and citizen of Cameroon, petitions for review of

an order of the Board of Immigration Appeals (“BIA”), affirming an Immigration Judge’s

(“IJ”) denial of his application for asylum and withholding of removal pursuant to the

Immigration and Nationality Act (“INA”) and protection under the Convention Against

Torture (“CAT”). For the reasons stated below, we will deny his petition for review.

                                              I.

       Mbube entered the United States on or about December 29, 2003, at Newark, New

Jersey. On March 8, 2004, he filed an application for asylum and withholding of

removal. Subsequently, the Department of Homeland Security issued a Notice to Appear

charging him with failing to have a valid immigrant visa. At a merits hearing held on

May 11, 2005, Mbube offered testimony and documentary evidence in support of his

claim for relief. He testified that as a result of his membership and participation in a

secessionist group known as the Southern Cameroons National Council (“SCNC”),

government security forces in Cameroon arrested and beat him on four separate

occasions, each of which is discussed below.

       Mbube claimed that he was first arrested by police officers in early 2000, at a

demonstration held to celebrate SCNC’s declaration of independence. Mbube testified

                                              2
that following his arrest, he was detained, interrogated about his involvement with SCNC,

beaten with belts and sticks and kicked for approximately thirty minutes, and released the

next day with the help of his family lawyer.

       Mbube’s second arrest allegedly occurred in October 2001, at a demonstration held

to commemorate the fortieth anniversary of the independence of the Southern Cameroons.

After the police officers arrested him, they took him to a cell, beat him, and when he

asked them for something to drink, forced him to drink urine. Later that same day, police

officers were in the process of transporting him and other prisoners to a nearby station

when the vehicle capsized. Mbube testified that with the assistance of a local farmer, he

was able to escape and return home.

       Mbube’s third arrest allegedly occurred at a polling station during the 2002

parliamentary and municipal elections. Mbube testified that, at the direction of SCNC

officials, who instructed the younger SCNC members to disrupt the election process, he

seized a ballot box from a poll worker and tore up ballots cast by citizens in the elections.

Along with other SCNC members, Mbube was arrested at a polling place later that same

day. Following his arrest, the police interrogated him about his knowledge of SCNC

activities, and when he refused to answer, the police used a blade to make a small cut in

the center of his chest. After this occurred about a dozen times, the police tied Mbube’s

feet, raised his legs above his head, and beat him on the back with heavy sticks and

cables. The interrogation and beatings ceased after he divulged the whereabouts of the



                                               3
SCNC chairman, and he was released seven days later.

       The fourth arrest allegedly occurred at the funeral of Dr. Marin Luma, a SCNC

chairman, on May 17, 2003. Along with other SCNC members, Mbube was allegedly

arrested at the burial site for wearing a SCNC t-shirt. When he resisted being placed in a

jail cell, he was struck in the back of the head with a rifle butt, causing a head wound that

was left untreated for days. He was allegedly beaten on the soles of his feet for the

remainder of his detention and, with the assistance of his attorney, released for medical

treatment on May 22, 2003.

       Mbube submitted numerous documents in support of his claim for relief. Those

documents included: (1) his birth certificate; (2) a national identity card; (3) a SCNC

membership card dated March 2003; (4) statements and affidavits from five individuals,

including the Secretary General of the SCNC; (5) photographs of his injuries; and (6) a

medical report indicating an injury and treatment date in August of 2003.

       After hearing the evidence and arguments of counsel, the IJ denied Mbube’s

application for asylum, withholding of removal and protection under CAT, and ordered

that he be removed to Cameroon. The IJ reasoned that based on several inconsistencies

and discrepancies in the record, Mbube had not testified credibly about his alleged

involvement in the SCNC or the alleged arrests and incidents of torture, and, furthermore,

that he had failed to offer sufficient corroborating evidence. In addition, the IJ noted that

the punishment which Mbube received following his third arrest in connection with his



                                              4
actions in disrupting the election may have been in the nature of prosecutory conduct, not

persecution. The Board affirmed the IJ’s decision, and this petition for review ensued.

                                            II.

       We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Where, as here, the BIA

adopts the decision of the immigration judge but also discusses some of the bases for the

decision, we have authority to review the decisions of both the immigration judge and the

BIA. Chen v. Ashcroft, 376 F.3d 215, 222 (3d Cir. 2004). The administrative findings of

fact are deemed conclusive “unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S.

478, 481 & n.1 (1992).

                                            III.

                                            A.

       An adverse credibility finding must be supported by “specific, cogent reasons why

the applicant is not credible.” Gabuniya v. Attorney General, 463 F.3d 316, 321 (3d Cir.

2006) (internal quotation marks, brackets, and citation omitted). “We look at an adverse

credibility determination to ensure that it was appropriately based on inconsistent

statements, contradictory evidences, and inherently improbable testimony . . . in view of

the background evidence on country conditions.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d

Cir. 2003) (internal quotation marks and citation omitted). Adverse credibility findings

based on “speculation or conjecture, rather than on evidence in the record, are reversible.”



                                             5
Gao v. Ashcroft, 299 F.3d 266, 272 (3d Cir. 2002). Furthermore, “only inconsistencies

going to the heart of a claim will be deemed to compromise [an applicant’s] credibility.”

Chukwu v. Attorney General, No. 05-4068, 2007 WL 1096890, at *4 (3d Cir. Apr. 13,

2007).1

       After consideration of the record, we conclude that substantial evidence supports

the IJ’s adverse credibility determination. The IJ found a number of discrepancies

between Mbube’s testimony and his application, as well as between his testimony and the

documents he submitted at the hearing. At least two of the discrepancies went to the

heart of his claim. First, Mbube offered contradictory evidence concerning the nature of

the beatings following his fourth arrest. He testified at the merits hearing that “one of the

officers hit me with the butt of his rifle on [my] head,” but in his affidavit in the record he

wrote that “five healthy and strong military men held me up and were twisting my arms,

some were beating me on the head with the tail of their riffles.” The second discrepancy

relates to his mother’s arrest. Mbube wrote in his second affidavit in the record that

“[his] mother was briefly arrested, after [his] departure from Cameroon, and told that the

police would ‘have to keep her for awhile’ until [he] returned.” At the merits hearing,




  1
    Under the REAL ID Act of 2005, credibility determinations may be made “without
regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim.” Pub. L. No. 109-13, § 101(a)(3)(B)(iii), 119 Stat. 231, 303 (2005).
This provision of the REAL ID Act applies only to cases where the applicant applied for
asylum or other relief after May 11, 2005. See id. § 101(h)(2), 119 Stat. at 305. Because
Mbube applied for asylum in 2004, our pre-REAL ID Act standard applies.

                                               6
however, he failed to make any mention of his mother’s arrest, even when asked why he

was afraid of returning to Cameroon. We agree with the IJ that Mbube’s explanations for

these inconsistences were unsatisfactory. In light of the discrepancies and the lack of

adequate explanations, we conclude that the IJ’s adverse credibility determination rested

on substantial evidence.2

       In addition to the foregoing discrepancies, the IJ found a number of other

inconsistencies in the record. First, Mbube testified that he joined SCNC in January 2000

and received a membership card in April 2000, but the membership card he submitted

was dated March 2003. He explained that he lost his first membership card in 2001, and

did not receive the replacement card until two years later. Second, Mbube testified that

he received medical treatment for injuries he sustained in May 2003, but a medical report

in the record listed an injury and treatment date of August 2003. He explained that the

date on the medical report was incorrect, and merely reflected the date his attorney sought

the report. Third, Mbube testified that he was in hiding prior to his departure for the

United States, but his application indicated that he was self-employed as an electrician

until December 2003. He explained that he continued to identify himself as an electrician

during his time of hiding, although he was not working at that particular time. Fourth,

Mbube testified that he did not leave Cameroon until December 2003, but a number of the


  2
    Because substantial evidence supports the IJ’s adverse credibility determination, we
need not consider Mbube’s claim that the IJ erred in determining that Mbube sustained
punishment as a result of prosecution for crimes he committed, not persecution.

                                             7
affidavits in the record indicated that he had left before August 2003. He attributed the

mistakes to his lawyer in Cameroon, who assisted in the preparation of the documents.

Since we conclude that substantial evidence otherwise supports the adverse credibility

determination, we need not consider whether these inconsistencies go to the heart of his

claim or the reasonableness of Mbube’s explanations for the inconsistencies.

       Mbube’s contentions concerning the IJ’s evinced doubts about his identity and his

refusal to consider unauthenticated documents are unavailing. It is true that “[m]ere

doubts about the plausibility of a petitioner’s testimony are an insufficient basis for denial

of an application.” Toure v. Attorney General, 443 F.3d 310, 326 (3d Cir. 2006). As we

stated in Toure, “[i]f the BIA denies an asylum application solely because it finds the

applicant not credible, it generally must clearly and explicitly state that it has made an

adverse credibility finding and that it bases its denial on that finding.” Id. Here,

however, the record makes abundantly clear that the IJ did not deny Mbube’s asylum

application based upon mere doubts about his identity or adverse inferences drawn from

his fictitious passport. Rather, there were inconsistencies in the record going to the heart

of Mbube’s claim which compromised his credibility as a whole.

       Mbube also argues that the IJ disregarded unauthenticated documents in the

record, such as his SCNC membership card, in reaching a conclusion on the issue of

credibility. We recognized in Liu v. Ashcroft, 372 F.3d 529, 533 (3d Cir. 2004), that “8

C.F.R. § 287.6 is not an absolute rule of exclusion, and is not the only means of



                                              8
authenticating records before an immigration judge.” Thus, under Liu, an IJ commits

error if he refuses to consider documents solely because they have not been certified in

accordance with 8 C.F.R. § 287.6. Liu is inapposite here. While the IJ in this case noted

that Mbube attempted to secure authenticated documents but was unable to do so, there is

no evidence that the IJ refused to consider documents because they were not

authenticated. Rather, the record shows that the IJ considered the unauthenticated

documents, but found that they contradicted Mbube’s testimony or were otherwise

unpersuasive. In any event, the unauthenticated documents do not cure the material

discrepancies in the record, which provide substantial support for the IJ’s adverse

credibility determination. Cf. Liu, 372 F.3d at 534 (remanding to the BIA where the

improper rejection of unauthenticated documents could have infected the adverse

credibility determination).

                                              B.

       Mbube argues that the IJ erred in requiring evidence corroborating that Mbube was

a member of the SCNC who suffered persecution in Cameroon. We find no error in the

IJ’s request for corroboration. The BIA has adopted rules which require corroboration in

instances where it is reasonable to expect such proof from a witness and there is no

satisfactory explanation for its absence. Obale v. Attorney General, 453 F.3d 151, 163

(3d Cir. 2006). These rules, which we approved in Abdulai v. Ashcroft, 239 F.3d 542 (3d

Cir. 2001), involve a three step analysis: (1) an identification of facts for which it is



                                               9
reasonable to expect corroboration; (2) the presence or absence of such corroboration in

the record; and (3) the adequacy of applicant’s explanation for its absence. The third

prong presumes that the IJ offers a petitioner an opportunity to explain the absence.

Obale, 453 F.3d at 163.

       Here, the IJ expressed doubts about whether Mbube was a member of the SCNC

who suffered persecution in Cameroon and noted that the documents in the record

attesting to his membership and persecution were of questionable value because they

contradicted his testimony. When the IJ inquired why Mbube had not submitted direct

testimony or affidavits from officials of a SCNC organization located in Maryland,

Mbube could not provide an adequate explanation. Given the inconsistencies between the

affidavits in the record and Mbube’s own testimony, we find that it was reasonable for the

IJ to request testimony or affidavits from additional SCNC members and, furthermore,

that it was entirely appropriate to refer to the availability of officials from a SCNC

organization located in a nearby state.

       In summary, we conclude that the IJ engaged in a proper three-step corroboration

analysis, and we are not “compelled to conclude that such corroborating evidence is

unavailable.” REAL ID Act of 2005, Pub. L. No. 109-13, § 101(e), 119 Stat. 231, 305

(2005).3




  3
    This provision of the REAL ID Act of 2005 became effective immediately, and thus
applies to Mbube’s petition. § 101(h)(3), 119 Stat. at 305.

                                             10
                                             C.

       To qualify for protection under CAT, an applicant must “establish that it is more

likely than not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2). An applicant must establish by objective evidence

that he is likely to be tortured in the future. Zubeda v. Ashcroft, 333 F.3d 463, 469 (3d

Cir. 2003). Torture is defined, in relevant part, as “any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a person.” 8 C.F.R. §

208.18(a)(1). Claims for relief under CAT are “analytically separate” from claims for

asylum and withholding of removal under the INA. Zubeda, 333 F.3d at 476.

Consequently, rejection of asylum and withholding of removal claims does not control the

analysis of a CAT claim. Id.

       Mbube argues that the BIA and IJ erred in failing to conduct a separate analysis

under CAT. We cannot agree. Here, as in Toussaint v. Attorney General, 455 F.3d 409,

417 (3d Cir. 2006), we are satisfied that the BIA conducted a separate inquiry for

Mbube’s claim under CAT. The BIA stated in its order that Mbube’s “failure to establish

even prima facie eligibility for such protection leads us to conclude that, even if the

Immigration Judge failed to separately analyze his CAT claim, there is no basis for a

remand of the record.” Thus, it is clear that the BIA understood that claims under the

INA and claims for CAT protection are separate forms of relief and afforded them

individualized consideration. Id. Moreover, even though the Cameroon government’s



                                             11
human rights record is poor, we cannot conclude that a reasonable trier of fact would be

compelled to conclude that it is more likely than not that Mbube would be tortured if

removed to Cameroon.

      For the foregoing reasons, the petition for review is DENIED.




                                            12
