Nkeng v. Barr

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT July 16, 2019
_________________________________
Elisabeth A. Shumaker
Clerk of Court
NGUATEM CHARLES NKENG,

Petitioner,

v. No. 18-9561
(Petition for Review)
WILLIAM P. BARR, United States
Attorney General,

Respondent.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before MATHESON, PHILLIPS, and CARSON, Circuit Judges.
_________________________________

Nguatem Charles Nkeng, an Anglophone (English-speaking) native and citizen

of Cameroon, petitions for review of a final order of removal. Exercising jurisdiction

under 8 U.S.C. § 1252(a), we deny the petition.

I. BACKGROUND

Mr. Nkeng entered the United States in July 2017 without proper

documentation. The Department of Homeland Security issued him a Notice to

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Appear to answer the charge that he was removable as an alien. See 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). He conceded removability but applied for asylum, withholding

of removal, and protection under the United Nations Convention Against Torture

(CAT).

A. Evidence at Hearing

At a hearing before an Immigration Judge (IJ), Mr. Nkeng testified that during

college, he joined a student political party, the Yellow Party, that advocated for

student rights. He took part in student strikes protesting the replacement of the

school’s chancellor. At one of the protests, police and gendarmes arrested some of

the protestors, but not Mr. Nkeng.

After graduation in 2014, Mr. Nkeng became a part-time high school teacher

and also worked in construction. In November 2016, Anglophone teachers, including

Mr. Nkeng, began “sit down” strikes in the schools. Mr. Nkeng said the teachers

sought greater rights for themselves and also protested the practice of giving final

exams in French to Anglophones.1 Some of the protestors were arrested, but

Mr. Nkeng was not. A month later, Mr. Nkeng and other teachers took to the streets

to protest, demanding the release of the arrested teachers. When the police and

gendarmes arrived to disperse the strikers, Mr. Nkeng ran and escaped.

1
As the IJ explained, Francophones (French-speakers) largely dominate
Cameroon’s government, and most Anglophone Cameroonians live in the southwest
and northwest regions of the country. Mr. Nkeng is from the southwest region and
speaks “Cameroonian pidgin English,” which is “a creole combining elements of
pidgin English and local Cameroonian languages.” Admin. R. at 80 & n.2.
2
 The next month, January 2017, community-wide “ghost town” protests began,

during which inhabitants of Anglophone areas remained indoors on Mondays,

Tuesdays, and Wednesdays. This effectively shut down commerce and government

functions on those days for two months.

On February 11, 2017, National Youth Day, the governor of southwestern

Buea, Mr. Nkeng’s home region in Cameroon, instructed the director of the Buea

Central Prison to release some prisoners to allow them to participate in a parade on

behalf of the University of Buea and other schools. Most of the prisoners

disappeared after their temporary release. The next day, while Mr. Nkeng was

working at a construction site, police surrounded the group of construction workers,

arrested them, and took them to a police station. During his arrest, Mr. Nkeng

resisted and was hit with the butt of a gun on his head, waist, and hips. Mr. Nkeng

testified that the governor came to the police station and said he was going to use the

men to replace the prisoners who had been on temporary release for the parade and

had not returned. Mr. Nkeng was then forced to sign a document stating that he had

been a prisoner who had escaped.

Mr. Nkeng was held for two days in an overcrowded, windowless cell. He was

not beaten. Detainees had to use a bucket as a toilet and were fed bread and water

once a day. Mr. Nkeng managed to escape. While hiding at his father’s house, the

police came and arrested other people in the neighborhood, killing one person, but

Mr. Nkeng evaded capture. Eventually, he was able to leave the country.

3
 Mr. Nkeng testified that he feared returning to Cameroon because of the

document he had signed falsely stating he was a prisoner at the Buea Central Prison

who had escaped, and because there was an outstanding warrant for his arrest. He

added that the fact he was an Anglophone escapee made it worse because the

government “perceive[s] the anglophones as secessionists, as terrorist[s].” Admin. R.

at 337.

In his closing argument, Mr. Nkeng contended that the treatment he received

during his arrest amounted to persecution or torture, and that he had a fear of future

persecution based on the outstanding warrant for his arrest and his protest activities

as an Anglophone teacher. Id. at 368-72.

B. Immigration Judge Decision

The IJ denied Mr. Nkeng’s requests for relief and ordered him removed to

Cameroon. The IJ found Mr. Nkeng’s story largely credible but concluded that he

failed to show that his experience in Cameroon rose to the required level of

persecution under the law or that it bore a nexus to a protected ground. As for the

latter, the IJ found that Mr. Nkeng’s treatment during his arrest and detention was not

severe enough to qualify as persecution. The IJ also found that, as Mr. Nkeng had

testified, “the real basis for [his] arrest was the regional governor’s desire [to]

replenish the central prison after inmates escaped.” Id. at 84. The IJ explained,

“However illegitimate this was as a basis for [Mr. Nkeng’s] arrest, there is no

evidence that [he] was being punished for the expression of a political opinion or

political opinion that was imputed to him.” Id.

4
 The IJ further found that Mr. Nkeng did not have a well-founded fear of future

persecution on account of a protected ground because his alleged fear was based on

his arrest and the active arrest warrant, not on a ground recognized in asylum law.

The IJ therefore denied asylum and withholding of removal. The IJ also denied CAT

relief, finding that Mr. Nkeng had provided insufficient evidence to show he was

likely to be tortured if he returned to Cameroon.

C. Board of Immigration Appeals Decision

On appeal to the Board of Immigration Appeals (BIA), Mr. Nkeng argued that

his arrest and two-day detention was severe enough to constitute persecution, and

that “even if [he] was only tangentially politically active,” his arrest and detention

“could have been based on imputed political opinion,” id. at 21.

The BIA upheld the IJ’s decision. The BIA said it had “no reason to disturb

the [IJ’s] finding that [Mr. Nkeng] will not, within a reasonable possibility, be

‘persecuted’ for political reasons in Cameroon.” Id. at 3. It observed that Mr. Nkeng

did not “meaningfully dispute the [IJ’s] finding that the ‘real basis for [his] arrest was

the regional governor’s desire to replenish the central prison after inmates escaped.”

Id. (quoting id. at 84).

The BIA rejected Mr. Nkeng’s suggestion that “his past mistreatment could

have been based on imputed political opinion,” explaining that “the possibility of an

alternative motivation is insufficient to establish clear error in the [IJ’s] factual

finding that the harm was not motivated by [Mr. Nkeng’s] political opinion.” Id.

(internal quotation marks omitted). The BIA therefore concluded there was “clear

5
support for the [IJ’s] factual finding that the past mistreatment [Mr. Nkeng] described

. . . was not politically motivated.” Id. at 4.

The BIA also found no clear error in the IJ’s finding that Mr. Nkeng failed to

demonstrate “it is more likely than not he will be tortured if removed to Cameroon.”

Id. Accordingly, the BIA dismissed Mr. Nkeng’s appeal.

II. DISCUSSION

A. Standard of Review

In reviewing a BIA decision, “we decide purely legal questions de novo.”

Ritonga v. Holder, 633 F.3d 971, 974 (10th Cir. 2011). We review factual findings

under the deferential substantial-evidence standard. Id. Under that standard, “[o]ur

duty is to guarantee that factual determinations are supported by reasonable,

substantial and probative evidence considering the record as a whole.” Sarr v.

Gonzales, 474 F.3d 783, 788 (10th Cir. 2007) (brackets and internal quotation marks

omitted). The standard is deferential in that “[a]gency findings of fact are conclusive

unless the record demonstrates that any reasonable adjudicator would be compelled

to conclude to the contrary.” Id. at 788-89 (internal quotation marks omitted).

“In this circuit, the determination whether an alien has demonstrated

persecution is a question of fact[.] ” Ritonga, 633 F.3d at 974 (internal quotation

marks omitted). “Similarly, a request for protection under the CAT involves factual

determinations reviewed for substantial evidence.” Htun v. Lynch, 818 F.3d 1111,

1118 (10th Cir. 2016). “We do not weigh the evidence or evaluate the witnesses’

credibility.” Sarr, 474 F.3d at 789 (internal quotation marks omitted).

6
Where, as here, the BIA issues a brief order affirming an IJ’s decision, we will not

affirm on grounds raised in the IJ’s decision unless the BIA relied on them.

Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th Cir. 2007). We may therefore

consult the IJ’s opinion only to the extent “the BIA incorporated the IJ’s reasoning,

either expressly or by implication.” Sarr, 474 F.3d at 790. Our review is confined to

the reasons the agency gave, and “we will not independently search the record for

alternative bases to affirm.” Ritonga, 633 F.3d at 974.

B. Analysis

1. Asylum and Withholding of Removal

An asylum applicant has the burden of demonstrating eligibility for asylum by

proving he “is a refugee[] within the meaning of [8 U.S.C. §] 1101(a)(42)(A).”

8 U.S.C. § 1158(b)(1)(B)(i). To meet that burden, the applicant must establish that

he suffered past persecution or has a well-founded fear of future persecution on

account of a protected ground (race, religion, nationality, membership in a particular

social group, or political opinion). See 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.

§ 1208.13(b); Sarr, 474 F.3d at 788. Although persecution is not defined by statute,

we have “observed that it requires the infliction of suffering in a way regarded as

offensive and requires more than just restrictions or threats to life and liberty.” Xue

v. Lynch, 846 F.3d 1099, 1106 (10th Cir. 2017). A fear of future persecution is

well-founded if there is a “reasonable possibility” of persecution. Ritonga, 933 F.3d

at 976 (internal quotation marks omitted).

7
 To be eligible for withholding of removal (also called restriction on removal),

an alien must demonstrate that his “life or freedom would be threatened” in the

proposed country of removal “because of [a protected ground].” 8 U.S.C.

§ 1231(b)(3)(A). To meet this standard, an alien “must show either past persecution

in the proposed country of removal, or that ‘it is more likely than not that he or she

would be persecuted’ on one of the specified grounds upon returning to the proposed

country of removal.” Ritonga, 633 F.3d at 978 (quoting 8 C.F.R. § 1208.16(b)(2)).

In his appellate brief, Mr. Nkeng does not directly address the evidence

supporting the BIA’s finding that the harm he experienced during his arrest and

detention, and any fear of future persecution based on those events, is unrelated to

any protected ground. Instead, his argument centers on (1) the credibility of his

testimony; (2) whether the treatment he received during his arrest and detention was

severe enough to qualify as persecution; and (3) whether he has a well-founded fear

of future persecution or, for withholding purposes, whether it is more likely or not his

life or freedom will be threatened because of an imputed political opinion.2

2
Mr. Nkeng also argues that he faces persecution on account of belonging to a
particular social group he defines as (1) “a Cameroonian male that is believed to be
an escaped prisoner and/or a Cameroonian Anglophone who was imprisoned, has
escaped, and is wanted by Cameroonian authorities,” Pet’r’s Br. at 9; or (2) those the
Cameroonian authorities view as “an Anglophone critical of the regime, an escaped
political prisoner and/or he is wanted for escaping prison,” id. at 23-24. He claims
“[h]e was a ‘political’ prisoner because, due to political reasons beyond [his] control,
he became a political scapegoat.” Id. at 24. Before the agency, however, Mr. Nkeng
never claimed he was a member of any particular social group. Mr. Nkeng has
therefore not exhausted this issue, which precludes us from considering it. See
Sidabutar, 503 F.3d at 1119 (explaining that failure to present an issue to the BIA
8
 Although the IJ deemed Mr. Nkeng generally credible,3 his petition as to

asylum and withholding of removal fails on the protected ground element. The BIA

did not need to address whether the harm Mr. Nkeng experienced during his arrest

and detention was severe enough to constitute persecution. This is so because it

agreed with the IJ’s finding that there was no nexus between Mr. Nkeng’s arrest or

detention and a protected ground. Substantial evidence supports this finding.

In his sworn asylum application, Mr. Nkeng stated: “The mistreatment

occured [sic] because the governor of the southwest region in Buea had instructed the

police officers to randomly arrest youths in Buea as a means to get some of the

prisoners from the Buea central prison who had escaped . . . .” Admin. R. at 606

(emphasis added). At his hearing before the IJ, Mr. Nkeng reiterated that he was

merely the victim of an arbitrary arrest ordered by a corrupt politician. See id. at 318

(testifying that the governor put him “in jail to replace the—basically to replenish the

jail because the jailees had escaped”); id. at 319 (testifying that the governor “used us

to cover up for the prisoners who escaped . . . in order to save his own job”).

constitutes a failure to exhaust administrative remedies, which precludes appellate
review of the issue).
3
The IJ questioned Mr. Nkeng’s credibility concerning (1) part of his story of
how he traveled from Cameroon to Mexico, prior to entering the United States; and
(2) the truth of some information on applications for a U.S. visitor’s visa he
unsuccessfully submitted in 2016. The IJ found Mr. Nkeng not credible regarding
painkillers and medical care a nurse allegedly provided to him while he was in hiding
at his father’s house after his escape from detention because “[t]his assertion was
missing from [his] declaration and his father’s affidavit.” Admin. R. at 84 n.5.
9
 Nothing in the record supports Mr. Nkeng’s argument that he was arrested and

detained on account of an imputed political opinion or other protected ground. To

the contrary, substantial evidence supports the BIA’s contrary determination. No

reasonable fact-finder would be compelled to conclude that his arrest and detention

were on account of a protected ground, or that any treatment he might receive in the

future because of his arrest and detention would be based on a protected ground.

Consequently, we cannot overturn the BIA’s denial of asylum or withholding of

removal.

2. CAT Relief

To obtain CAT relief, an alien must show “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.

§ 1208.16(c)(2). The torture would have to be “inflicted by or at the instigation of or

with the consent or acquiescence of a public official or other person acting in an

official capacity.” Id. § 208.18(a)(1). “Torture is an extreme form of cruel and

inhuman treatment and does not include lesser forms of cruel, inhuman or degrading

treatment or punishment that do not amount to torture.” § 208.18(a)(2).4 Unlike

4
Torture for CAT purposes is more fully defined as

any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him
or her or a third person information or a confession, punishing him or her
for an act he or she or a third person has committed or is suspected of
having committed, or intimidating or coercing him or her or a third person,
or for any reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the consent or
10
asylum or withholding of removal, relief under the CAT “does not depend on a

showing that mistreatment would be based on any particular characteristic (e.g. race

or political opinion),” Sarr, 474 F.3d at 788. Under the substantial-evidence standard

of review, we must deny the petition unless no reasonable adjudicator could reach the

same finding as the IJ and BIA.

The BIA noted that “[a]part from briefly mentioning the [CAT] in his appeal

brief, [Mr. Nkeng] has not alleged any error in the denial of his application for

withholding of removal under the [CAT].” Admin. R. at 4. Nonetheless, the BIA

saw “no clear error in the [IJ’s] factual finding that [Mr. Nkeng] has not

demonstrated that it is more likely than not he will be tortured if removed to

Cameroon.” Id. In a more complete explanation, the IJ said Mr. Nkeng had not

proven his CAT claim because (1) despite some occurrence of torture in Cameroon

by law enforcement, torture is illegal there and the government “as an entity does not

practice, condone, or willfully acquiesce in torture”; (2) the record lacked evidence

that Mr. Nkeng was tortured; and (3) there was “no clear probability” that the police

or other Cameroonian authorities would torture Mr. Nkeng in the future. Id. at 85-86.

Mr. Nkeng points to evidence of his being hit with a gun while resisting arrest

and then being detained for two days in overcrowded and unsanitary conditions. But

this court has upheld findings that similar treatment was not persecution, which in

acquiescence of a public official or other person acting in an official
capacity.
§ 208.18(a)(1).

11
turn is less extreme than torture. Niang v. Gonzales, 422 F.3d 1187, 1196 (10th Cir.

2005). For example, in Xue v. Lynch, we determined that no reasonable factfinder

would conclude that an alien suffered persecution where he (1) “was arrested and

detained in cramped, dark, and unsanitary conditions for four nights and three days”;

(2) was “fed a bowl of porridge twice a day”; (3) was “interrogated once, during

which time he was hit on the back of his head with an officer’s hand, and then struck

on his arm with an officer’s baton”; (4) “did not testify that he required medical

treatment, or even that he was in significant pain”; and (5) “did not claim he

experienced any lasting problems as a result of his detention.” 846 F.3d at 1107. We

further observed that this court had “determined that similar fact situations did not

compel a finding of past persecution.” Id. (citing Witjaksono v. Holder, 573 F.3d

968, 977 (10th Cir. 2009), and Kapcia v. INS, 944 F.2d 702, 704, 708 (10th Cir.

1991)).5

Mr. Nkeng’s mistreatment during his arrest and detention is not materially

distinguishable. He was (1) hit while resisting arrest, (2) detained for two days in

cramped and unsanitary conditions with limited nutrition, (3) did not credibly testify

5
As summarized in Xue, this court affirmed the finding in Witjaksono “that an
alien had not suffered past persecution when evidence showed [a] soldier physically
assaulted [an] alien on one occasion and [the] alien suffered minor injuries that did
not require medical treatment.” Xue, 846 F.3d at 1107. And in Kapcia, we affirmed
a “finding that aliens suffered no past persecution when evidence showed one alien
was arrested four times, detained three times, and beaten once and the other alien was
twice detained for forty-eight hours during which time he was interrogated and
beaten.” Id.

12
that any injuries he sustained required medical treatment,6 and (4) did not testify that

his mistreatment caused him any lasting problems. Applying our precedent and

substantial evidence standard of review to the record, we cannot say that “any reasonable

adjudicator would be compelled to conclude” that the IJ’s finding on the likelihood of

torture was wrong. Sarr v. Gonzales, 474 F.3d at 788-89.

Mr. Nkeng’s remaining arguments are unavailing. He recites documentary

evidence in the record stating there have been “several reports that members of

defense and security forces committed arbitrary and unlawful killings,” and that

prison conditions are generally deplorable. Pet’r’s Br. at 17-19. But this evidence

fails to show that it is more likely than not Mr. Nkeng would be killed or tortured if

he returned to Cameroon.

Even if Mr. Nkeng might be arrested on his outstanding warrant and

imprisoned, the evidence of poor prison conditions is also insufficient to meet

Mr. Nkeng’s burden because it does not show the government imposes the conditions

for the purpose of torture. See 8 C.F.R. § 208.18(a)(5) (“In order to constitute

torture, an act must be specifically intended to inflict severe physical or mental pain

or suffering. An act that results in unanticipated or unintended severity of pain and

suffering is not torture.” (emphasis added)); Banegas Gomez v. Barr, 922 F.3d 101,

109-10 (2d Cir. 2019) (noting that for prison conditions to constitute torture, they

must be “extreme” and, like torture itself under § 208.18(a)(5), imposed

6
As noted in footnote 3, supra, the IJ did not credit Mr. Nkeng’s testimony
that the beating he sustained required painkillers or a nurse’s care.
13
“intentionally rather than as a result of poverty, neglect, or incompetence” (internal

quotation marks omitted)).

Mr. Nkeng points to additional parts of the record that, he says, support his

CAT claim. They largely consist of a United States State Department Human Rights

Report for 2016, nongovernmental organization reports, and news articles. The

documents refer to episodes of torture, describe human-rights abuses, and detail the

ongoing conflict between the Francophone government and the Anglophone minority,

many of whom have fled the country to avoid violent government crackdowns. An IJ

must consider “[e]vidence of gross, flagrant or mass violations of human rights

within the country of removal” when assessing a claim for CAT relief. 8 C.F.R.

§ 1208.16(c)(3)(iii). But Mr. Nkeng has not explained how the record evidence of

general conditions shows he is more likely than not to be tortured if he is removed to

Cameroon.7

7
See Dhital v. Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008) (per curiam)
(upholding denial of CAT relief where evidence of an ongoing internal political
struggle in Nepal, including torture, did not indicate that the alien “would face any
particular threat of torture beyond that which all citizens of Nepal are at risk”);
Almuhtaseb v. Gonzales, 453 F.3d 743, 751 (6th Cir. 2006) (explaining that to qualify
for CAT relief, an alien “must establish a particularized threat of torture,” and
concluding that general statements regarding torture in alien’s home country did not
show it was “more likely than not that [the alien] herself would be subject to such
treatment” (internal quotation marks omitted)).
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 III. CONCLUSION

We uphold the BIA’s affirmance of the IJ’s decision under the substantial

evidence standard. The petition for review is denied.

Entered for the Court

Scott M. Matheson, Jr.
Circuit Judge

15