UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1238
HUMPHREY TEBOH MBAH,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: March 26, 2010 Decided: July 15, 2010
Before TRAXLER, Chief Judge, and GREGORY and AGEE, Circuit
Judges.
Petition for review granted by unpublished per curiam opinion.
ARGUED: Danielle L. C. Beach-Oswald, BEACH-OSWALD IMMIGRATION
LAW ASSOCIATES, PC, Washington, D.C., for Petitioner. Allison
Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C.,
for Respondent. ON BRIEF: Amy M. Grunder, BEACH-OSWALD
IMMIGRATION LAW ASSOCIATES, PC, Washington, D.C., for
Petitioner. Tony West, Assistant Attorney General, Civil
Division, M. Jocelyn Lopez Wright, Senior Litigation Counsel,
Anthony J. Messuri, Trial Attorney, Office of Immigration
Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Petitioner Humphrey Teboh Mbah, a citizen of Cameroon,
conceded removability and applied for asylum and withholding of
removal under the Immigration and Nationality Act (“INA”), and
for relief under the Convention Against Torture (“CAT”). Mbah
claims he fled Cameroon after being arrested and suffering
physical abuse because of his affiliation with the Southern
Cameroons National Counsel (“SCNC”), which advocates
independence for southern Cameroonian provinces.
At his asylum hearing, Mbah testified that he was detained
twice by government agents as a result of his SCNC activities.
Mbah testified that his first arrest occurred on December 31,
1999, in Bamenda while he and other SCNC members were
celebrating the announcement that Southern Cameroon had declared
independence. According to Mbah, he was detained for five days
during which time he suffered numerous beatings. Mbah stated
that his detention came to an end as a result of the
intervention of the SCNC. Mbah was arrested for a second time
in May 2003 during the funeral of former SCNC leader Martin Luma
and eventually detained in New Bell prison in Douala. Mbah
claims that he was detained for almost two weeks but was
ultimately released after his brother arranged a bribe.
An Immigration Judge found that Mbah was not credible in
light of “all of the evidence and all of the testimony” before
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the court. J.A. 58. Specifically, the Immigration Judge
concluded that Mbah’s credibility was undercut by a number of
discrepancies between Mbah’s asylum application and his
testimony at the hearing, as well as by other implausibilities
in Mbah’s narrative.
Mbah’s corroborating evidence included the testimony of
Frida Ngwa, who appeared at the hearing solely to verify that
all of the information contained in her previously-submitted
affidavit was accurate. Both the Government and the Immigration
Judge declined to question Ngwa. According to her affidavit,
Ngwa has first-hand knowledge about Mbah’s arrest on December
31, 1999 and his subsequent detention. Ngwa was an SCNC
National Executive at the time and was able to visit the SCNC
detainees who were arrested during the Bamenda celebrations,
including Mbah. Based on her observations, Ngwa stated that
Mbah had “sustained serious injuries all over his body,
especially around his ribs and ankle” and that “[h]e was unable
to stand on his feet due to the torture and beat[ings] he got
from the arrest.” J.A. 295. Her statement was consistent with
Mbah’s testimony. The Immigration Judge, however, rejected
Ngwa’s testimony that she visited Mbah in jail because there was
no evidence other than her word that she was an executive
officer with the SCNC in Cameroon.
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Mbah also presented the testimony of Eric Takwi, an elected
official of the American branch of the SCNC, who appeared
primarily to authenticate documents sent from Cameroon by
Charles Mbide Kude, the Assistant Executive Secretary General of
the SCNC in Cameroon. Kude’s documents, in turn, purported to
confirm the general details of Mbah’s arrests and detentions.
At Takwi’s request, Kude drafted an affidavit indicating that
Mbah had been arrested and detained twice; Kude’s information
was based not on first-hand knowledge but on reports from the
SCNC “Head Office” in Southern Cameroon and “its agents and
affiliates, as well as with grass-roots SCNC activists . . .
[and] close family relations.” J.A. 466. At the hearing, Takwi
testified that he had worked with Kude for two years and was
familiar with his signature. Neither the Government nor the
Immigration Judge questioned Takwi about the authenticity of the
Kude documents. Nevertheless, the Immigration Judge rejected
the Kude affidavit and the SCNC “Statistics Bureau” Chart that
were authenticated by Takwi at the hearing; the judge concluded
that there was “insufficient evidence for this Court to find
that this particular document is a reliable document” because it
did not explain “the source of [its] information.” J.A. 59.
The Immigration Judge, having made an adverse credibility
determination, concluded that Mbah’s corroborating evidence was
insufficient to sustain Mbah’s burden of proving his claims.
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The Board of Immigration Appeals (“BIA”) affirmed the denial of
all forms of relief. It concluded that the adverse credibility
determination was not clearly erroneous and that the Immigration
Judge properly considered all of Mbah’s additional evidence.
Mbah argues that the Immigration Judge erroneously
discounted the affidavits and testimony of Ngwa and Takwi, two
witnesses who provided important corroboration for Mbah’s claim.
We agree. Although Ngwa testified at the hearing, she appeared
for the primary purpose of affirming her previously-submitted
affidavit. Thus, the Immigration Judge, in discrediting Ngwa,
was essentially discounting her affidavit which attested to
Mbah’s condition during his first confinement. An “immigration
judge cannot reject documentary evidence without specific,
cogent reasons why the documents are not credible.” Kourouma v.
Holder, 588 F.3d 234, 241 (4th Cir. 2009). The Immigration
Judge found “absolutely no corroboration whatsoever as to
[Ngwa’s] position as a national executive member of the SNC,”
which the judge believed to be necessary “because according to
her affidavit it was in this capacity that she allegedly visited
the respondent in jail.” J.A. 63.
Thus, the Immigration Judge’s specific and cogent reason
for rejecting Ngwa’s corroborating affidavit was that it lacked
its own corroboration. However, “[t]here is no general rule
that evidence offered in corroboration requires independent
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corroboration.” Marynenka v. Holder, 592 F.3d 594, 602 (4th
Cir. 2010). In fact, it is legal error for an Immigration Judge
to reject the statement of a corroborating witness under the
mistaken belief that “corroborating evidence requires further
corroboration.” Id.
Moreover, despite Ngwa’s appearance at the hearing, she was
never asked to provide objective evidence of her former position
in the SCNC or to explain the absence of such corroborating
evidence. “[E]ven for credible testimony, corroboration may be
required when it is reasonable to expect such proof and there is
no reasonable explanation for its absence.” Lin-Jian v.
Gonzales, 489 F.3d 182, 191-92 (4th Cir. 2007). Significantly,
“[t]he requirement that the [witness] provide a reasonable
explanation for the lack of corroborating evidence presumes that
the IJ offers . . . an opportunity to explain the absence.” Id.
at 192 (internal quotation marks omitted). By failing to
question Ngwa about the lack of corroboration for her status in
the SCNC, the Immigration Judge inadvertently foreclosed Ngwa’s
ability to address the court’s concern.
The Immigration Judge also erroneously discounted the
testimony of Takwi and the documentary evidence—Kude’s
affidavit, in particular—introduced through him on hearsay
grounds. The Immigration Judge was troubled by the Kude
affidavit’s lack of a detailed explanation of how the
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information about Mbah’s arrests was gathered. The Immigration
Judge concluded that “neither the testimony of Mr. Takwi nor the
affidavit of . . . Kude are sufficiently reliable . . . to
corroborate [Mbah’s] claim.” J.A. 59. It is well-established
that the rules of evidence do not apply strictly to asylum
hearings. See Kourouma, 588 F.3d at 241; Singh v. Ashcroft, 398
F.3d 396, 406-407 (6th Cir. 2005) (explaining that
“[e]videntiary matters in immigration proceedings . . . are not
subject to the Federal Rules of Evidence”), and hearsay evidence
is admissible as corroborating evidence in removal proceedings,
see Lin v. United States Dep’t of Justice, 459 F.3d 255, 272 (2d
Cir. 2006). In rejecting the Kude affidavit, the Immigration
Judge did not offer any reason to question the reliability of
the document other than the fact that it contained hearsay.
Likewise, the government did not offer rebuttal evidence or
cross-examine Takwi as to the reliability of the document.
The Immigration Judge, therefore, committed legal error in
rejecting the testimony of Ngwa and Takwi and the Kude
affidavit, requiring us to vacate the Board’s decision and
remand for further consideration of Mbah’s claims for relief in
light of this opinion. See Marynenka, 592 F.3d at 602. In so
doing, the immigration judge should also reconsider the adverse
credibility determination. Accordingly, we grant Mbah’s
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petition for review and remand for the Immigration Judge to
reconsider Mbah’s claims for relief.
PETITION FOR REVIEW GRANTED
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