UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-1699
THOMAS DECZEM BASSANGUEN,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: September 20, 2012 Decided: February 27, 2013
Before TRAXLER, Chief Judge, DAVIS, Circuit Judge, and Max O.
COGBURN, Jr., United States District Judge for the Western
District of North Carolina, sitting by designation.
Petition granted in part; vacated and remanded by unpublished
per curiam opinion. Judge Davis wrote a separate opinion
concurring in the judgment.
ARGUED: Danielle L. C. Beach-Oswald, BEACH-OSWALD IMMIGRATION
LAW ASSOCIATES, PC, Washington, D.C., for Petitioner. Justin
Robert Markel, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Tony West, Assistant Attorney
General, Civil Division, Carl H. McIntyre, Assistant Director,
UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration
Litigation, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
2
PER CURIAM:
Thomas Deczem Bassanguen is a native and citizen of
Cameroon. He was admitted into the United States under a
nonimmigrant visitor’s visa on July 5, 2005, with authorization
to remain in the United States until September 4, 2005. He
subsequently filed an affirmative application for political
asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The Immigration Judge
(“IJ”) denied all forms of relief sought by Bassanguen, based
upon an adverse credibility determination, and the Board of
Immigration Appeals (“BIA”) affirmed. Bassanguen now petitions
this court for review of the decision of the BIA. For the
reasons that follow, we grant the petition for review in part,
vacate the BIA’s order, and remand for reconsideration.
I.
A.
In his application for relief, Bassanguen claims to be a
member of the Social Democratic Front (“SDF”), an opposition
party in Cameroon. He asserts that he was arrested and
subjected to persecution because of his SDF membership on three
separate occasions.
First, Bassanguen testified that he was arrested on May 24,
1997, detained for three days, and subjected to inhumane and
3
humiliating conditions during the detention. For example, he
claimed that he was forced to undress to his underwear, confined
in a urine-saturated cell with no sanitation facilities, and
forced to lie on a cement floor, which caused him to experience
nausea, vomiting, and pain.
Second, Bassanguen testified that he was arrested on June
30, 2002, and detained for five days. He claimed that he was
subjected to similar inhumane conditions, as well as repeated,
brutal beatings and kickings by prison officials. He claimed
that, after he was released, he experienced pain and difficulty
walking as a result of the beatings he sustained during this
detention. In December 2002, Bassanguen traveled from Cameroon
to Nigeria and, following a ten-day stay, voluntarily returned
to Cameroon without difficulty or arrest.
Bassanguen testified that he was arrested for the third and
final time on November 6, 2004, and detained for eight days. He
testified that he was again subjected to inhumane conditions,
including being forced to carry buckets of urine from the cells
and being subjected to repeated beatings. He testified that he
escaped from this detention with the help of a police officer,
but he offered contradictory testimony as to whether he was also
assisted and accompanied by his lawyer during the escape.
Shortly thereafter, Bassanguen went to the United States Embassy
4
in Cameroon and was issued a nonimmigrant visitor’s visa. He
arrived in the United States on July 5, 2005.
Bassanguen asserts that he is eligible for asylum based on
the three incidents of arrest and past persecution as well as a
fear of future persecution if he returns to Cameroon.
Bassanguen testified that he has remained a member of the SDF
party in the United States since his arrival here and that he
fears the Cameroonian government has been made aware of his
activities. Bassanguen testified that he attended his first SDF
meeting in the United States in August 2005, that he has
participated in one demonstration in this country, and that he
has attended as many as five more SDF meetings since August
2005. He testified that the last meeting he attended was in
November 2009, approximately two months prior to the hearing
before the IJ.
In addition to his own testimony, Bassanguen presented the
testimony of Dr. Mary Cogar, a clinical psychologist, and Enid
Duplex Kuissu, a fellow SDF member. He also submitted a number
of documents and letters from family members and SDF officials.
B.
On March 19, 2012, the IJ issued an oral decision denying
Bassanguen’s applications for asylum, withholding of removal,
and protection under the CAT, and ordering Bassanguen removed to
Cameroon. Applying the REAL ID Act of 2005, the IJ found that
5
Bassanguen “was not sufficiently credible in his testimony.”
J.A. 279. In support, the IJ cited the following
inconsistencies and inaccuracies in Bassanguen’s evidence, in
conjunction with “unrebutted evidence which reflects random
fraud of certain documents coming out of Cameroon.” J.A. 277.
Bassanguen submitted documents purported to be from his
wife, who remained in Cameroon. Bassanguen admitted, however,
that the signature on at least one of the documents did not
appear to be the signature of his wife, which the IJ found to be
“fundamentally dishonest.” J.A. 274. Later in his testimony,
Bassanguen speculated that his wife may have deliberately
changed her signature out of fear of retaliation by the
Cameroonian government, but the IJ found this explanation not
credible because the document clearly designated Bassanguen’s
wife as the author of the letter, regardless of the signature.
Bassanguen submitted letters from an SDF official in
Cameroon that contained inconsistent information. The first
letter contained inaccuracies about Bassanguen’s activities that
a second letter attempted to correct, but the second letter
provided no explanation as to why the errors had occurred in the
first place. The letters submitted were purportedly from the
same SDF official in Cameroon, but were on different
letterheads. Also, Bassanguen’s SDF membership card contained
6
different issue dates, which Bassanguen could only attribute to
an unexplained mistake.
A letter purportedly written by a leader in the SDF party,
Chief Taku, regarding Bassanguen’s third arrest in Cameroon was
also submitted. Chief Taku dates Bassanguen’s third arrest in
Cameroon as occurring on November 6, 2005. This was contrary to
Bassanguen’s testimony that the arrest occurred on November 6,
2004, and the fact that Bassanguen was in the United States in
November 2005. When the IJ questioned Bassanguen as to why he
abandoned his plan to present Chief Taku as a witness,
Bassanguen explained that he removed Chief Taku as a witness
because he realized that Chief Taku “doesn’t hold the same
position as he used to” with the SDF. J.A. 377. However,
Bassanguen’s advance notice to the court advised that Chief Taku
would not be called as a witness for “personal reasons,” and
would not have affected the substance of his testimony regarding
the arrest. J.A. 275. Bassanguen’s explanation at the hearing
also contradicted Kuissu’s testimony regarding Chief Taku’s
continued leadership role in the SDF organization in the United
States.
Bassanguen’s testimony about his continued participation in
the SDF party in the United States and his attendance at SDF
meetings was also inconsistent with the testimony of Kuissu.
Kuissu testified that he did not believe that Bassanguen was
7
still a member of the SDF. He testified that he last saw
Bassanguen at an SDF meeting in 2008, and that he was present at
but did not see Bassanguen at the November 2009 meeting.
Finally, the IJ found that Bassanguen’s voluntary return to
Cameroon from Nigeria after his second arrest undermined the
credibility of his claim that he is afraid to return. The IJ
additionally found that Bassanguen’s explanation for his return
did not adequately address these credibility concerns.
Having considered the entirety of the evidence presented,
including the discrepancies found therein, the IJ rendered her
adverse credibility determination, as follows:
So considering the totality of the circumstances,
the Court finds that the respondent was not
sufficiently credible in his testimony. His fact
witness [Kuissu] was not sufficiently credible. The
overseas documents were not sufficiently probative and
credible. The document generated by Chief Taku,
because of a material inconsistency, is not probative.
The respondent has failed to meet his legal burden to
demonstrate that he was the victim of past persecution
in Cameroon. I have considered whether or not, based
on his activities in the United States, he has a well-
founded fear of future persecution. Because of
conflicting information regarding the status of his
activities in the United States and given what the
Court perceives, in any event, to be his low level of
participation in the SDF at this point, the Court does
not find that the respondent has met his legal burden
to show that he has an objectively reasonable fear and
in any event, the Court still does not credit the
respondent’s contention, at this point in time, that
he has a fear that is subjectively genuine given the
fact that he has on another occasion, after he
claim[s] having been arrested and detained, returned
voluntarily to Cameroon.
8
J.A. 279. Consequently, the IJ denied Bassanguen’s asylum claim
and his request for withholding of removal. Citing the same
inconsistencies as well as several additional ones, the IJ also
denied Bassanguen’s request for relief under the CAT.
On appeal, the Board held that the IJ’s adverse credibility
determination was not clearly erroneous, concluded that
Bassanguen did not submit adequate corroborating evidence to
overcome the IJ’s concerns with Bassanguen’s credibility, and
affirmed.
II.
A.
The Immigration and Nationality Act (“INA”) authorizes the
Attorney General to grant asylum to an alien who qualifies as a
“refugee.” See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). A
“refugee” includes “any person who is outside any country of
such person’s nationality . . . and who is unable or unwilling
to return to, and is unable or unwilling to avail himself . . .
of the protection of, that country because of persecution or a
well-founded fear of persecution on account of . . . political
opinion.” 8 U.S.C. § 1101(a)(42)(A); see Zelaya v. Holder, 668
F.3d 159, 161 (4th Cir. 2012). The applicant bears the burden
of proving refugee status. See Zelaya, 668 F.3d at 161.
9
The INA also provides for the withholding of removal. See
8 U.S.C. § 1231(b)(3)(A); Camara v. Ashcroft, 378 F.3d 361, 367
(4th Cir. 2004). The burden for prevailing on this claim is
higher than under an asylum claim because the petitioner “must
show a clear probability of persecution on account of a
protected ground.” Djadjou v. Holder, 662 F.3d 265, 272 (4th
Cir. 2011) (internal quotation marks omitted). Because the
burden of proof for withholding of removal is higher than for
asylum, an applicant who is ineligible for asylum is necessarily
ineligible for withholding of removal. See id.
Finally, the CAT “prohibits the United States from
returning any person to a country where the person has
demonstrated that it is more likely than not that he will be
tortured if returned to such country.” Zelaya, 668 F.3d at 161.
B.
The scope of our review of the BIA’s decision “is narrow
and deferential.” Djadjou, 662 F.3d at 273; see also Dankam v.
Gonzales, 495 F.3d 113, 119 (4th Cir. 2007). We will uphold the
denial of an asylum claim “unless such denial is manifestly
contrary to the law and an abuse of discretion.” Zelaya, 668
F.3d at 165 (internal quotation marks omitted). “When the
denial of asylum is based on the conclusion that the applicant
failed to meet his evidentiary burden for establishing
eligibility, then we review for substantial evidence and must
10
affirm a determination of statutory ineligibility by the BIA
unless the evidence presented was so compelling that no
reasonable factfinder could fail to find eligibility for
asylum.” Dankam, 495 F.3d at 119 (internal quotation marks
omitted).
“Our review of an adverse credibility determination is
[also] limited to ensuring that substantial evidence exists to
support it.” Djadjou, 662 F.3d at 273. “We accord broad
deference to the agency’s credibility determination,” but the
“deference . . . is not absolute.” Id. “[T]he agency must
provide specific, cogent reasons for making an adverse
credibility determination.” Id.
Under the provisions of the REAL ID Act of 2005, the
testimony of an applicant alone can be sufficient to meet the
applicant’s burden of proof if the IJ is satisfied that the
applicant’s testimony is credible. See 8 U.S.C. §
1158(b)(1)(B)(ii). The IJ’s credibility determination is
governed by the following provision:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a
credibility determination on the demeanor, candor, or
responsiveness of the applicant or witness, the
inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or
witness’s written and oral statements (whenever made
and whether or not under oath, and considering the
circumstances under which the statements were made),
the internal consistency of each such statement, the
consistency of such statements with other evidence of
11
record (including the reports of the Department of
State on country conditions), and any inaccuracies or
falsehoods in such statements, without regard to
whether an inconsistency, inaccuracy, or falsehood
goes to the heart of the applicant’s claim, or any
other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
Thus, as we have observed, “omissions, inconsistent
statements, contradictory evidence, and inherently improbable
testimony are appropriate bases for making an adverse
credibility determination. The existence of only a few such
inconsistencies, omissions, or contradictions can be sufficient
for the agency to make an adverse credibility determination as
to the applicant’s entire testimony regarding persecution.”
Djadjou, 662 F.3d at 273-74 (citations omitted). The
determination may not, however, be based on speculation,
conjecture, or otherwise unsupported personal opinion. See id.
at 274.
III.
The IJ in this case grounded her adverse credibility
determination on several inconsistencies within Bassanguen’s
testimony, as well as inconsistencies between Bassanguen’s
testimony and the corroborating evidence submitted in support of
his claims.
On appeal, Bassanguen challenges the IJ’s reliance upon
three of these alleged inconsistencies: (1) Bassanguen’s
12
acknowledgement that at least one of the letters purporting to
be from his wife did not appear to contain her signature; (2)
Bassanguen’s voluntary departure and return to Cameroon in 2002,
following two incidents in which he was allegedly arrested,
detained, subjected to inhumane conditions, and persecuted; and
(3) the discrepancy between Bassanguen’s testimony and Chief
Taku’s letter regarding the alleged date of Bassanguen’s third
arrest in Cameroon.
We reject Bassanguen’s first two challenges to the adverse
credibility determination. The inconsistent signatures of
Bassanguen’s wife on letters submitted in support of his claims,
and Bassanguen’s acknowledgement that he submitted the letters
even though at least one signature did not match that of his
wife, was appropriately considered as a matter affecting his
credibility. The IJ was also entitled to consider, as a part of
the adverse credibility determination, Bassanguen’s testimony
that he voluntarily return to Cameroon in December 2002. This
voluntary return would have occurred after two alleged prior
incidents of persecution, the latter of which occurred a mere
six months before the voluntary return and involved several days
of inhumane treatment and beatings. See, e.g., Loho v. Mukasey,
531 F.3d 1016, 1018 (9th Cir. 2008); Ngarurih v. Ascroft, 371
F.3d 182, 189 (4th Cir. 2004). Although Bassanguen claims that
he only decided to seek asylum after the third incident of
13
detention and inhumane treatment, the BIA correctly concluded
that the “voluntary return after two arrests is a valid
consideration, when considered along with the inconsistencies
and other issues” in his evidentiary presentation. J.A. 4.
The IJ’s and the Board’s reliance upon the discrepancy
between Bassanguen’s testimony and Chief Taku’s letter regarding
the date of Bassanguen’s third arrest in Cameroon, however, is
problematic. The precise date varies only in the year of the
arrest (November 6, 2004 versus November 6, 2005), and it is
undisputed that Bassanguen was in the United States in November
2005. Thus, at oral argument, the Attorney General rightly
conceded that the date discrepancy alone was most likely a mere
typographical or clerical error.
The IJ additionally observed that Bassanguen failed to
offer a consistent explanation as to why he removed Chief Taku
as a witness at the hearing, and that Chief Taku could have
explained the discrepancy in the date had he testified.
Nevertheless, the IJ and the Board both characterized the
discrepancy in the date alone as a material one supporting the
adverse credibility determination. It also appears that the IJ
may have relied upon the error to reject portions of the other
corroborating evidence. Because we cannot presume that the IJ
would have weighed the other factors the same had it disregarded
the perceived inconsistency between Chief Taku’s letter and
14
Bassanguen’s testimony, or that the Board would have reviewed
the decision the same, remand is necessary to allow the IJ and
the BIA to reassess Bassanguen’s credibility under the totality
of the circumstances, without regard to this single discrepancy.
IV.
For the foregoing reasons, we grant Bassanguen’s petition
for review in part, vacate the Board’s order, and remand the
matter for further consideration consistent with this opinion.
PETITION GRANTED IN PART;
VACATED AND REMANDED
15
DAVIS, Circuit Judge, concurring in the judgment:
Petitioner Thomas Deczem Bassanguen seeks review of an
order of the Board of Immigration Appeals (“Board” or “BIA”)
dismissing his appeal of an Immigration Judge’s (“IJ”) decision.
The IJ found Bassanguen removable and denied his applications
for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). The BIA affirmed the IJ’s
finding that Bassanguen was not “sufficiently credible in his
testimony” to establish a right to relief.
I agree that the record compels us to grant the petition
for review, although I would not attempt to cabin the remand for
further review of Bassanguen’s claims with the same
parsimoniousness invoked by the majority. Indeed, it is unlikely
that I would vote to grant the petition for review on the sole
basis identified by the majority. Thus, as I set forth herein, I
believe the record discloses several distinct but interrelated
deficiencies in the IJ's adverse credibility determination,
embraced by the Board, that together entitle Bassanguen to a
remand. In short, as the case comes to us on the reasoning of
the agency, the record does not rationally support the adverse
credibility determination and the case requires a fresh look.
16
I.
A.
Bassanguen is a native and citizen of Cameroon. J.A. 765-
66. He entered the United States on a nonimmigrant visitor visa
in July 2005 with authorization to remain in the United States
for a temporary period not to exceed September 4, 2005. J.A.
766, 856. Approximately one year later, he filed an affirmative
application seeking asylum, withholding of removal, and
protection under CAT based on past persecution (i.e., events
surrounding his arrest and detention on three separate
occasions) he experienced in Cameroon on account of his
political activities and his fear of persecution in the future
should he return to Cameroon. J.A. 753. The U.S. Department of
Homeland Security (“DHS”) placed Bassanguen in removal
proceedings by filing a Notice to Appear with the Immigration
Court, alleging he exceeded the period of stay authorized by his
visa and charging him as removable pursuant to Immigration and
Nationality Act (“INA”) § 237(a)(1)(B). J.A. 856.
At his merits hearing before the IJ, Bassanguen testified
on his own behalf and presented testimony from Dr. Mary Cogar, a
clinical psychologist, and Enid Duplex Kuissu, a Social
17
Democratic Front (“SDF”) 1 member and activist from Cameroon. In
addition, he presented several documentary exhibits.
Bassanguen testified to incidents surrounding his three
arrests after he became a member of the SDF in 1997. J.A. 339.
He recalled that his first arrest in connection with his
political activities occurred on May 24, 1997, when he was on
his way to a protest organized by the SDF. J.A. 338-39. He was
taken to the police precinct in the city of Yaounde and held for
three days. J.A. 342-43. During his detention, he was “undressed
all the way to [his] underwear,” shoved into a cell with other
protesters, and “morally tortured.” J.A. 343. He testified that
he did not suffer any other mistreatment, but that three days
after his release he was “experiencing . . . nausea” and
vomiting he believed was caused by the odor of urine in the
cell. J.A. 344. He also experienced body aches from continuously
lying on the cement floor. J.A. 344-45. He gained his release
with the assistance of SDF attorneys. J.A. 346.
Bassanguen testified that his second arrest occurred five
years later on June 30, 2002, when he was working as a polling
officer representing the SDF. He observed what he believed to be
1
“The SDF is a leading opposition political party in
Cameroon, formed in 1990 to challenge the one-party dictatorship
of the ultra-conservative Cameroon People’s Democratic Movement
(CPDM) that has ruled Cameroon since the country’s
independence.” Petitioner’s Br. 4.
18
boxes containing fraudulent ballots brought in for counting.
J.A. 347-50. After he opposed pressure from representatives of
the ruling party to count the ballots, the police arrived,
arrested him, and detained him for five days. J.A. 349-51. He
was undressed, pushed into a cell, and accused of “insult[ing]
the people at the polling place and . . . ma[king] troubles at
the polling place.” J.A. 351. He was questioned and “beat[en] .
. . badly with a round baton” on the bottom of his feet. J.A.
351-52. He recalled being beaten a total of three times; among
other trauma, he was kicked by officers wearing “big policeman
boots.” J.A. 352-53. SDF attorneys intervened, and his release
was conditioned on his no longer taking part in SDF marches and
protests. J.A. 354. Upon release, Bassanguen experienced pain on
the bottom of his feet, difficulty walking, and body aches. J.A.
354. He was prescribed medication from a family doctor. J.A.
354.
Bassanguen testified that his third arrest occurred two
years later on November 6, 2004. J.A. 354-55. On that day,
Bassanguen, along with other SDF members and members of other
opposition parties, paraded to protest President Paul Biya’s 22
years in power. J.A. 354-55. The police broke up the protest and
arrested many protestors, including Bassanguen. J.A. 357. The
police took him to the precinct in Yaounde, where he spent eight
days. J.A. 357-58. Upon arrival, he and other arrestees were
19
stripped and beaten as they entered their cells. J.A. 358. On
the second day, he was ordered to carry buckets of urine out of
the cells, and upon returning, was beaten with a baton. J.A.
358-59. On the third day, police beat him with batons and “their
big ranger’s shoes” “to the point where [he] start[ed] limping
on . . . [his] right leg.” J.A. 360. He came out of the cell on
what he believed was the fourth or fifth day, and was taken to
the investigator’s office. J.A. 361. He was then beaten on his
back when he returned to his cell. J.A. 361. After the fifth
day, he spent two days “lying down because [he] was hurting.”
J.A. 360-61. He escaped with the help of a policeman and went
straight into hiding at his uncle’s house on the outskirts of
Yaounde, where he remained for more than seven months. J.A. 362-
68. He recalled that he was “afraid” to go to his house because
he would be arrested. J.A. 367. During this time, he testified,
the police went to his house looking for him and questioned his
wife, who was handcuffed. J.A. 369-70.
He testified that he was later accompanied by an officer of
the gendarmerie to the U.S. Embassy in Cameroon to obtain a
visitor visa to come to the United States, using a letter of
invitation from a friend. J.A. 371-72. He entered the United
States on July 5, 2005. J.A. 768.
Bassanguen stated that the only organization he belongs to
in the United States is the SDF and that he participates in SDF
20
meetings and protests. J.A. 373-77. He could not testify to the
number of first-Thursday-of-the-month SDF meetings he had
attended (he stated it was more than five), but recalled that
the first meeting he participated in was in August 2005 and the
last was in November 2009. J.A. 381-82. He testified that if he
returned to Cameroon, he believed he would be immediately
arrested based on his political activities in the United States,
which are “recorded, taped and sent back . . . home.” J.A. 379.
On cross-examination he testified that he traveled from
Cameroon to Nigeria and back to Cameroon in December 2002,
several months after his second arrest. J.A. 394-95. He
testified that he returned to Cameroon “because [he] didn’t have
trouble at that time,” and “[officials] weren’t looking for
[him],” so he did not have any fear of returning. J.A. 394-95.
Dr. Cogar identified and swore to her psychological
evaluation of Bassanguen. J.A. 328. She indicated in detail why
she believed Bassanguen suffered from Post Traumatic Stress
Disorder. J.A. 527, 332. Kuissu testified that he was a member
of SDF in Cameroon and that he met Bassanguen in Yaounde, the
capital city. J.A. 435. He said they participated together in
marches organized by the SDF in Cameroon, and he confirmed that
Bassanguen had been arrested at the November 6, 2004, protest.
J.A. 436-37. Kuissu further testified, however, that he “really
[didn’t] know” and “didn’t believe” that Bassanguen was still a
21
member of the SDF. J.A. 441. He testified that he did not see
Bassanguen at the last SDF meeting he attended in November 2009,
and that he last saw Bassanguen at an SDF meeting in 2008. J.A.
439, 441, 446.
* * * * *
Of course, it goes without saying that it is not for this
court to decide how much, if any, of the above-described sordid
tale of repeated mistreatment is accurate or true. That task
falls to the IJ in the first instance, followed by plenary
review by the BIA. Our more circumscribed role is to ensure that
the agency acts in accordance with law and that the agency
decision-making is a rational process. See ante at 8-11
(discussing our standards of review).
B.
The IJ issued an oral decision denying Bassanguen’s
applications for asylum, withholding of removal, and protection
under CAT and ordered Bassanguen removed to Cameroon. J.A. 252,
254. Without reaching the substantive merits of Bassanguen’s
claims, the IJ found that Bassanguen’s credibility was fatally
undermined upon consideration of the following evidence and
circumstances:
• Bassanguen’s “voluntary return” to Cameroon from
Nigeria after his first two arrests. J.A. 274. His
explanation as to why he would be fearful now if he
had to return did not “adequately address” the
credibility concern. J.A. 274.
22
• It was “fundamentally dishonest” for Bassanguen to
submit letters purportedly from his wife when he knew
the signature on at least one of them did not appear
to be that of his wife. J.A. 274-75. He later
testified that he had spoken to his wife and she told
him “she was afraid of the consequences of signing a
letter in support of his asylum claim.” The
credibility of this explanation was undermined because
it was “belatedly offered.” J.A. 275.
• The “unexplained inconsistency” between a letter from
Chief Taku and Bassanguen’s testimony regarding the
year of his third arrest (i.e., 2004 or 2005). J.A.
275. Bassanguen’s explanation for why he did not call
Taku as a witness was “implausible.” J.A. 275.
• The inconsistencies between Kuissu’s account of
Bassanguen’s participation in the SDF in the United
States and Bassanguen’s own account of the same. Based
on these discrepancies, the IJ discredited Kuissu’s
account of Bassanguen’s participation in SDF
activities in Cameroon, including his account of the
third arrest. J.A. 276.
• The IJ “d[id] not have confidence in” Bassanguen’s
documents in light of DHS’s “unrebutted evidence which
reflects random fraud of certain documents coming out
of Cameroon.” J.A. 277.
• Bassanguen conceded that his SDF card had mistaken
information. J.A. 277.
• Discrepancies in the documents from Bassanguen’s wife
and his implausible explanation for them. J.A. 277-78.
• The SDF’s letters were not “worthy of probative
value”; a second letter indicated that a first letter
contained inaccurate information but failed to explain
how a letter with inaccurate information would have
been generated. J.A. 278 (apparently referring to J.A.
544, 640).
• Dr. Cogar was a credible witness, but she made no
credibility finding as to the facts. J.A. 278-79.
• The document Taku generated was not “probative”
because of the “material inconsistency.” J.A. 279
23
Thus, the IJ found that, considering the totality of the
circumstances, Bassanguen “was not sufficiently credible in his
testimony.” J.A. 274, 279. The overarching credibility
determination thus made, the IJ concluded that Bassanguen failed
to demonstrate he was the victim of past persecution in
Cameroon. J.A. 279. The IJ also concluded that Bassanguen failed
to demonstrate a well-founded fear of future persecution, or to
prove an objectively reasonable fear thereof because of
“conflicting information” regarding the status of his activities
in the United States and given, in the IJ’s view, his “low level
of participation in the SDF at this point.” J.A. 279.
Furthermore, the IJ found inadequate proof that Bassanguen’s
fear was subjectively genuine given his voluntary return. J.A.
279. The IJ thus denied all of Bassanguen’s claims.
C.
Bassanguen filed a timely Notice of Appeal with the BIA.
J.A. 242. The BIA determined that the IJ’s adverse credibility
determination was not clearly erroneous. J.A. 3. The BIA
affirmed the IJ’s reliance on the submission of documents
Bassanguen testified were not signed by his wife, noting that
the decision not to accept his explanation was based on a
plausible view of the record; on the discrepancy between his
testimony and Taku’s letter regarding the year of the third
arrest; on the inconsistency between testimony from Bassanguen
24
and Kuissu, noting that the IJ was not required to accept his
explanation for the inconsistency; and on the basis of the
adverse inference drawn by the IJ in respect to Bassanguen’s
return to Cameroon after his December 2002 trip to Nigeria. J.A.
3-4. The BIA also noted Bassanguen’s inability to explain why
two letters written by the same SDF official were on different
letterhead. J.A. 4. The BIA explained that the corroborating
evidence was insufficient to “overcome” the IJ’s adverse
credibility finding, noting problems with Taku’s letter,
Bassanguen’s wife, and Kuissu. J.A. 4. The BIA dismissed the
appeal. Bassanguen timely petitioned this court for review.
II.
Where the BIA affirms the decision of an IJ (collectively,
the “agency”) in a written opinion, we review both decisions on
appeal. Niang v. Gonzales, 492 F.3d 505, 511 n.8 (4th Cir.
2007); Kourouma v. Holder, 588 F.3d 234, 239-40 (4th Cir. 2009).
We recently explained:
We are obliged to uphold the BIA’s determinations
unless they are “manifestly contrary to the law and an
abuse of discretion.” Lizama v. Holder, 629 F.3d 440,
444 (4th Cir. 2011) (quoting Mirisawo v. Holder, 599
F.3d 391, 396 (4th Cir. 2010)) (internal quotation
marks omitted). The agency abuses its discretion “if
it fail[s] to offer a reasoned explanation for its
decision, or if it distort[s] or disregard[s]
important aspects of the applicant’s claim.” Tassi v.
Holder, 660 F.3d 710, 719 (4th Cir. 2011).
25
Our standard of review of the agency’s findings
is narrow and deferential. Dankam v. Gonzales, 495
F.3d 113, 119 (4th Cir. 2007). We seek to ensure that
the agency’s factual findings are supported by
substantial evidence. Marynenka v. Holder, 592 F.3d,
594, 600 (4th Cir. 2010). Substantial evidence exists
to support a finding “unless the evidence . . . was
such that any reasonable adjudicator would have been
compelled to conclude to the contrary.” Id. (quoting
Haoua v. Gonzales, 472 F.3d 227, 231 (4th Cir. 2007))
(internal quotation marks omitted). Similarly, we
cannot reverse the agency’s overall decision that an
applicant is ineligible for asylum unless we determine
that the applicant’s evidence “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). Our review of
legal issues, however, is de novo. Marynenka, 592 F.3d
at 600.
Djadjou v. Holder, 662 F.3d 265, 273 (4th Cir. 2011).
III.
Bassanguen essentially makes two arguments. First, he
contends that the BIA erred as a matter of law in concluding
that he lacks credibility. More particularly, he argues that:
(1) the BIA erred in sustaining certain erroneous conclusions
reached by the IJ; and (2) the BIA and IJ failed to offer
specific, cogent reasons for their adverse credibility findings. 2
2
To the extent that Bassanguen contends that the agency
failed to consider the totality of the circumstances, the
contention lacks merit. The REAL ID Act requires that the IJ
“consider[] the totality of the circumstances, and all relevant
factors” but allows an IJ to base the credibility determination
on a host of factors, one of which is the consistency of an
applicant’s statements with “other evidence of record.” This
(Continued)
26
Second, he contends that the BIA and IJ, “[i]n contravention of
controlling precedent,” “completely disregarded the abundance of
independent corroborating evidence” that “provides ‘strong
circumstantial evidence’ that [Bassanguen] was imprisoned for
his political expression of opposition to the Cameroonian
government.” Petitioner’s Br. 15, 39 (citing Camara v. Ashcroft,
378 F.3d 361, 370 (4th Cir. 2004); see also Petitioner’s Br. 28
(“The Board must not disregard independent corroborating
evidence that establishes entitlement to relief merely on the
court has said, in pre-REAL ID Act cases, that an IJ need not
provide “extensive reasoning” why each piece of the testimony or
documentary evidence was rejected, see Kourouma, 588 F.3d at
241; Ganziami–Mickhou v. Gonzales, 445 F.3d 351, 358 (4th Cir.
2006) (upholding IJ’s decision where IJ considered all
documentary evidence and based decision on totality of the
circumstances even though not discussing each document’s
individual worth). A balance must be struck between guarding
against an IJ's use of the boilerplate “totality” language to
protect empty analysis on the one hand, and according their
findings the deference they statutorily deserve on the other
hand. See Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir.
2010) (“[A]n IJ normally may not rely on nothing more than a
vague reference to the ‘totality of the circumstances’ or
recitation of naked conclusions that a petitioner’s testimony
was inconsistent or implausible, that the petitioner was
unresponsive, or that the petitioner’s demeanor undermined the
petitioner’s credibility. We have consistently required that the
IJ state explicitly the factors supporting his or her adverse
credibility determination.”).
The sometimes fine line between “boilerplate” and “naked
conclusions” on the one hand, and a rational consideration of
the totality of the circumstances, on the other hand, has not
been crossed here.
27
basis of other immaterial discrepancies in an applicant’s
supporting evidence.”).
I agree with the core assertions of Bassanguen's first
contention. That is, as the Attorney General essentially
conceded at oral argument, two of the factors the agency relied
upon in reaching and sustaining the adverse credibility
determination--Bassanguen’s voluntary return to Cameroon after
his ten-day visit to Nigeria in December 2002 and the presence
of a typo in the documentation of the year (2005 for 2004) of
Bassanguen’s third arrest--are so lacking in "cogency" as to
undermine the agency’s adverse credibility determination. To be
sure, despite the fact that the BIA and the IJ relied on other
(less weighty) factors to support the adverse credibility
finding, there is ample room to say (on this record) the
credibility finding is not supported by substantial evidence
without those two pillars. Accordingly, further consideration,
of both credibility and, if appropriate, on the merits, is
appropriate.
A.
Bassanguen argues that the BIA erred in determining that
his voluntary return to Cameroon constitutes a specific, cogent
reason to support the adverse credibility finding because it was
based on speculation and conjecture and is not supported by
substantial evidence. Despite his “sufficient explanation as to
28
why he returned to Cameroon after traveling to Nigeria in 2002
but was fearful for his life when he left the country for the
U.S. in 2005,” (i.e., “[h]e was arrested for a third time two
years after his return from Nigeria and was beaten almost every
day”) the IJ “speculated that his return to Cameroon after a
ten-day trip in Nigeria is not plausible and thus undermined his
credibility in his claim for asylum.” Petitioner’s Br. 24.
In my judgment, this factor is not supported by substantial
evidence. 3 The IJ’s conclusion completely disregards (without
providing a specific, cogent reason for doing so) Bassanguen’s
third arrest in November 2004, which (based on his testimony)
involved the longest period of detention, and I think is fairly
characterized as the worst in terms of its physical brutality
and psychological trauma. Manifestly, it is not remotely
implausible for Bassanguen (or any reasonable person) to be
seized by a heightened fear of persecution upon return where he
3
To be sure, Bassanguen’s argument that “circuit courts
have determined that return trips to one’s native country do not
as a matter of law rebut the presumption of future persecution,”
Petitioner’s Br. 28, is misplaced for the reasons given by the
Attorney General. See Attorney General’s Br. 20 n.5. First,
there is no presumption of persecution here because the agency
found that the claim of past persecution was not credible. See
Djadjou, 662 F.3d at 272. Second, neither the IJ nor the BIA
concluded that the voluntary return to Cameroon rebutted a
presumption that Bassanguen would be persecuted in the future;
instead they noted that his voluntary return undermined his
credibility.
29
was arrested and beaten after engaging in political activities
upon his prior return to Cameroon from Nigeria in 2002. Cf.
Ngarurih v. Ashcroft, 371 F.3d 182, 189-90 (4th Cir. 2004)
(voluntary return undermined claim of well-founded fear of
persecution where “there [was] no evidence that [applicant]
suffered any mistreatment” when he returned to country). There
is a difference between (1) fearing return to a country after
having departed and returned without experiencing torture or
arrest and, (2) as here, fearing return to a country having
departed and returned to experience renewed detention and
further torture. The agency failed to recognize this
distinction, only speculating that the return undermined
Bassanguen’s credibility. 4
Furthermore, the IJ found in a wholly conclusory manner
that Bassanguen’s explanation as to why he would be fearful now
to return was insufficient, and that he did not “adequately
address” the credibility concern. She failed to provide a
specific, cogent reason for why his explanation was not
adequate, particularly in light of the third arrest. Compare
4
The facts and circumstances in Loho v. Mukasey, 531 F.3d
1016 (9th Cir. 2008), on which the Attorney General relies, are
insufficiently described to discern whether the petitioner there
experienced persecution before and after her voluntary returns.
See id. at 1017-18. In any event, the IJ here did not adequately
explain why Bassanguen’s third arrest simply did not matter.
30
Djadjou, 662 F.3d at 274 (upholding IJ’s rejection of
petitioner’s explanation where IJ provided reason for doing so),
and Dankam v. Gonzales, 495 F.3d 113, 117-18 (4th Cir. 2007)
(upholding IJ’s rejection of plausible explanation where there
was a discrepancy between dates in letters, and the second
letter, allegedly meant to correct the first, did not
acknowledge error or indicate purpose), with Tewabe v. Gonzales,
446 F.3d 533, 539 (4th Cir. 2006) (“The IJ here attached the
bare label ‘implausible’ to Tewabe’s testimony without providing
specific and cogent reasons for doing so. This unexplained
characterization is unsustainable because Tewabe’s testimony is
not inherently implausible.”). Given the progression of the
infliction of harms shown here, Bassanguen could have plausibly
believed it was safe to return after two arrests, because “they
weren’t looking for [him]” then. J.A. 395. After the more recent
and more brutal detention immediately preceding his departure
for the United States in 2005, he (and any reasonable person)
could well imagine that he was at a serious risk of harm upon
his return after the third arrest and detention.
B.
In addition to the above consideration, I certainly join
the majority’s adoption of Bassanguen’s argument that the BIA
erred in concluding that an “immaterial discrepancy” between
Bassanguen’s testimony and Taku’s letter, namely, the year of
31
the third arrest and detention, constituted a specific, cogent
reason to support the adverse credibility finding. Bassanguen
argues this is an “obvious” mistake or “clerical error” and that
he “should have been afforded a reasonable opportunity to
explain the inconsistency through questioning at his asylum
hearing.” Petitioner’s Br. 31-32 (“Courts have held that an
asylum applicant must be afforded an opportunity to explain any
purported inconsistencies between their testimony and evidence.”
(citing Kin v. Holder, 595 F.3d 1050, 1057 (9th Cir. 2010); Zi
Lin Chen v. Ashcroft, 362 F.3d 611, 618 (9th Cir. 2004), for the
proposition that IJ’s doubt in “veracity” of alien’s story
cannot serve as basis for adverse credibility finding where
alien was not questioned further because it left court to
speculate on the matter; Ordonez v. INS, 345 F.3d 777, 786 (9th
Cir. 2003), for the proposition that “[t]he BIA violates an
alien’s due process rights when it makes a sua sponte adverse
credibility determination without giving the alien an
opportunity to explain alleged inconsistencies.”)). 5
5
The Attorney General contends that Bassanguen has waived
the argument that an IJ must notify a petitioner before holding
an inconsistency against him because it was not raised in his
Notice of Appeal or brief to the BIA. Attorney General’s Br. 22
n.6 (citing 8 U.S.C. § 1252(d)(1), “A court may review a final
order of removal only if . . . the alien has exhausted all
administrative remedies available,” and Kporlor v. Holder, 597
F.3d 222, 226 (4th Cir. 2010), “It is well established that an
alien must raise each argument to the BIA before we have
(Continued)
32
As the majority notes, at oral argument, the Attorney
General expressly conceded that “more likely than not” the
apparent “discrepancy” in the dates was a mere typo and that as
a matter of common sense and logic, an innocent “typo” can have
no genuine or probative bearing on credibility. Clearly, the
Attorney General’s concession is entirely warranted, as Taku
expressly purports to know of an arrest in both November 2005
and November 2004. Compare J.A. 722 (“[Bassanguen] was
arbitrarily arrested and detained three (3) times, (May 1997,
June 2002 and November 2005).”), with J.A. 722 (“Other pro-
democracy activist, including Thomas Bassanguen were arbitrarily
arrested during a peaceful protest demonstration on November 6th,
2004.”). The IJ failed to acknowledge this, or to acknowledge
that it is undisputed that Bassanguen arrived in this country on
July 5, 2005, and did not depart thereafter. 6
jurisdiction to consider it.” (internal quotation and citation
omitted)). The Notice of Appeal broadly contested the agency's
credibility finding, see J.A. 245 (“The IJ erred in ruling that
Respondent was not credible based on some minor
inconsistencies.”), however, and this panel correctly concludes
that the issue has been preserved.
6
Moreover, the IJ’s reliance on this “inconsistency” as
“unexplained” is problematic in the extreme. The IJ failed to
question Bassanguen about the matter, never specifically asked
why Taku was not called to clarify the “inconsistency,” and
failed to provide a specific, cogent reason for how the failure
to call him as a witness undermined Bassanguen’s credibility.
But, in the oral decision, the IJ suggests that Bassanguen was
(Continued)
33
C.
Unlike the majority, I am persuaded that, in light of the
insubstantial nature of the above two pillars of the adverse
credibility determination reached by the agency, the Board’s
treatment of two other aspects of the record supports our
determination that a remand is appropriate.
First, as all agree, the Board's misapprehension of the
typo in Taku’s letter led it to the untenable conclusion that
the letter was not “probative” because of the “material
inconsistency.” J.A. 279, 4. As explained, however, the
“inconsistency” is a mere clerical error that is not remotely
discrediting, of either the contents of the entire letter or of
Bassanguen’s own testimony.
Second, the record contains disturbing indications that the
Board erroneously discredited the whole of Kuissu’s testimony
with no justification for doing so. In Zuh v. Mukasey, 547 F.3d
504 (4th Cir. 2008), we remanded for the IJ to consider the
totality of the relevant evidence to determine whether
petitioner merited discretionary asylum relief where, inter
alia, the IJ abused her discretion by resting an adverse
asked, when he was not, why Taku was not called to clarify the
“material discrepancy.” To rely on a failure to explain an
alleged “discrepancy” that all agree required no real
explanation at all amounts to mere conjecture.
34
credibility finding on her disbelief of certain evidence but
granted withholding of removal and CAT protection by relying on
the same. 547 F.3d at 513. This was error because “[a]n IJ
cannot have it both ways, finding an applicant and his documents
incredible for one purpose and yet relying on them for another.”
Id.; see also Tassi, 660 F.3d at 724, n.11 (“The incongruity
here, of course, is that even though the IJ determined that
Tassi lacked credibility, the IJ relied on Tassi’s credibility
to find the September 2005 newspaper article to be
incredible.”). This rationale arguably applies here, where the
IJ used the inconsistencies between Kuissu’s account of
Bassanguen’s SDF participation in the United States and
Bassanguen’s own account of the same to find that Bassanguen was
not credible, J.A. 276, but then found that the discrepancies
also made Kuissu’s account of Bassanguen’s SDF participation in
Cameroon, including his third arrest, not credible. In other
words, the IJ relied on Kuissu’s credibility, specifically with
respect to Bassanguen’s SDF participation in the United States,
to discount Bassanguen’s credibility, and then found that Kuissu
was not credible with respect to his testimony regarding the
third arrest, without providing any other specific, cogent
reasons. J.A. 279.
Given this state of the record, while the IJ’s adverse
credibility finding rested on factors in addition to those that
35
are plainly out-of-bounds, those non-probative factors also
infected the IJ’s determination as to the weight of the overall
evidence, including the corroborative evidence offered by
Bassanguen. Accordingly, I am unable to conclude on this record
that those remaining factors justify denial of the petition for
review.
IV.
For the reasons set forth, although I regret the majority’s
election to grant the petition for review on such a stinting
basis, I am hopeful, if not confident, that the agency will give
a fresh look at Bassanguen’s application.
36