Ntamack v. Holder

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 08-2398

CALLIXTE JEAN MARIE NTAMACK,

Petitioner,

v.

ERIC H. HOLDER, JR., United States Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration
Appeals.

Argued: January 29, 2010 Decided: March 30, 2010

Before TRAXLER, Chief Judge, NIEMEYER, Circuit Judge, and
Jackson L. KISER, Senior United States District Judge for the
Western District of Virginia, sitting by designation.

Petition for review denied by unpublished per curiam opinion.

ARGUED: Danielle L. C. Beach-Oswald, BEACH-OSWALD IMMIGRATION
LAW ASSOCIATES, PC, Washington, D.C., for Petitioner. Carol
Federighi, 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, William C.
Peachey, Assistant Director, 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Unpublished opinions are not binding precedent in this circuit.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:

The Board of Immigration Appeals (“BIA”) denied the

application of Callixte Ntamack, a native and citizen of

Cameroon, for asylum, withholding of removal under the

Immigration and Nationality Act (“INA”), and withholding or

deferral of removal under the Convention Against Torture

(“CAT”), based on the statutory “persecutor bar” to relief and

on Ntamack’s failure to demonstrate that he will be tortured if

returned to Cameroon. The BIA found that Ntamack had been a

longtime member of Cameroon’s national gendarmerie and judicial

police force and had “ordered, incited, assisted, or otherwise

participated” in the persecution of others based on grounds

protected by the INA.

Because the BIA’s findings are supported by substantial

evidence in the record, we deny Ntamack’s petition for review.

I

After completing high school in 1983, Ntamack became a

member of Cameroon’s gendarmerie and entered two years of

professional schooling and training. Upon completion of that

schooling and training, he served variously as an investigator,

a noncommissioned officer in the anti-gang unit, and a judicial

police officer. After 14 years of service, Ntamack fled

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Cameroon in 1999 and entered the United States on a 6-month

nonimmigrant visa, where he sought asylum.

During the years in which Ntamack was a member of the

gendarmerie and judicial police, the State Department country

reports for Cameroon and reports from human rights organizations

indicated that these organizations frequently committed human

rights abuses, including unlawful killings, the use of harsh

interrogation techniques, and torture. In his application for

asylum, however, Ntamack stated that he was opposed to these

abuses and refrained from using the violent interrogation

techniques employed by his colleagues. While acknowledging that

the government falsely accused innocent people for political

ends, Ntamack also denied that he participated in such cases.

He justified his continued membership in the gendarmerie and the

judicial police with his need to support his wife and six

children.

Shortly after entering the United States, Ntamack filed an

application for asylum, but his application was denied. Because

he was, at the time, still lawfully within the United States,

removal proceedings were not initiated against him.

In June 2002, Ntamack again applied for asylum, and again

his application was denied. At this time, however, his case was

referred to an immigration judge as he had overstayed his visa.

While Ntamack conceded removability at the hearing before the

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immigration judge, he requested asylum, withholding of removal

under both the INA and the CAT, and deferral of removal under

the CAT. In support of his application, Ntamack testified that

he had been imprisoned three times in Cameroon for

insubordination and suspicion of supporting the opposition to

the government. He stated that, on each occasion, his superiors

believed that he was supporting the opposition because of his

unwillingness to engage in repressive conduct, and on each

occasion he was interrogated and beaten.

His first imprisonment was in 1991, when his unit was sent

to suppress a demonstration in the province of Bamenda. Rather

than employ violent tactics, as he was ordered to do, Ntamack

falsely claimed to be suffering from a stomach ache and was sent

to a military hospital for testing. When the medical reports

showed no evidence of a problem, Ntamack was imprisoned for

insubordination, questioned about his political opinion, and

accused of sympathy with the opposition. During this stay, he

was handcuffed, tied up, beaten, and whipped while being

interrogated. When he was tried, however, he was acquitted due

to a lack of evidence, and, after being given a few days in the

hospital to rest, he was allowed to return to work.

The second imprisonment occurred in 1992, when Ntamack was

dispatched with his unit to quell a student demonstration at the

University of Yaounde, during which the students were demanding

5
democratic reforms and freedom. Ntamack stated that while he

attempted to persuade his colleagues to refrain from violence

and sought to negotiate with the students, his pleas were

rejected. Instead, members of his unit arrested, beat, and

wounded some of the students. Describing his own role during

the demonstration, Ntamack stated, “We made a line and we

start[ed] going towards the students, and we start beating on

those who did not want to obey the order.” When asked to be

more specific about his own actions, he stated, “I held myself

back a bit. Since (indiscernible) student divided the campus, I

tried (indiscernible) some of the group and asked them to go

back, to go back into the classroom.” Upon his return to

headquarters, Ntamack was again questioned about his political

opinions and accused of not actively participating in orders to

disperse the students. Ntamack was again imprisoned for

insubordination and, he claimed, was beaten and interrogated

under all kinds of conditions -- “bright lights day and night.”

When he was taken before a tribunal, he was again acquitted for

lack of evidence, and again he returned to work in the

gendarmerie.

Ntamack was imprisoned the third time in 1997 when he was

assigned to assist at polling stations during the presidential

election. After he told election observers about irregularities

and ballot-box tampering, his superiors questioned him about his

6
political views. He was again sent to prison, interrogated, and

beaten to the point of unconsciousness. Ntamack remained in

prison until August 1999, when, with the assistance of friends,

he escaped. He stated that a friend, who worked at the prison,

opened the cell, permitting Ntamack to exit through the front of

the building. Two friends waited there in a car and drove him

away. He then went into hiding, where he remained for

approximately a month, before departing for the United States.

In addition to giving his own testimony at the hearing,

Ntamack also presented the testimony of Anne Catherine Enane,

who confirmed some of what Ntamack stated, especially about the

events at the University of Yaounde. He also presented

documentary evidence in the form of prison discharge documents,

letters from relatives, and the State Department country reports

for Cameroon.

After the hearing, the immigration judge denied Ntamack’s

application for asylum, withholding of removal under the INA,

and withholding of removal and deferral of removal under CAT.

The judge found Ntamack’s testimony not to be credible for

several reasons. The judge noted that Ntamack’s testimony

lacked detail about certain events and was inherently

inconsistent -- he testified to imprisonment and mistreatment,

yet he was allowed to remain a member of the gendarmerie.

Indeed, he was even promoted, becoming a member of the judicial

7
police. The immigration judge also found discrepancies between

Ntamack’s story and that of Enane.

On the merits, the immigration judge ruled that Ntamack had

not suffered past persecution because of his political opinions.

Rather, his imprisonment and mistreatment were due to his

insubordination. The immigration judge also found that Ntamack

had failed to make a showing under CAT that it was more likely

than not that he would be tortured if returned to Cameroon,

observing that nothing in the record indicated the government’s

ongoing interest in him. The judge acknowledged that Ntamack

might have to serve a sentence upon his return, but that such

punishment would be a legal response to his escape.

The immigration judge found that even if Ntamack had made

the necessary showing for relief, the judge would deny relief

because Ntamack was a persecutor, barring relief by statute.

The judge found that the gendarmerie was a persecutory

organization that had committed acts of violence against the

students based on their political beliefs. While the judge

acknowledged that Ntamack had attempted to withdraw himself

somewhat from violent actions, he nonetheless found that Ntamack

was “part of these units where people [were] being questioned,

harmed, and beaten, and therefore, [was] also part of the

persecutory arm of government.” The immigration judge rejected

Ntamack’s financial justification for remaining with the

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gendarmerie and determined that Ntamack had failed to carry his

burden of demonstrating that he was not a persecutor.

On appeal, the BIA affirmed. It stated that it did not

need to address the immigration judge’s adverse credibility

determination because Ntamack was statutorily barred from relief

because he was a persecutor. While recognizing that mere

membership in a persecutory organization was insufficient to bar

relief, the BIA noted that Ntamack had furthered persecution

through his inaction toward other members of his unit committing

acts of persecution, his participation in the imprisonment of

others, and his assistance in making a show of force toward the

protesting students. In view of this evidence of persecution,

the BIA ruled that Ntamack had failed to meet his burden of

showing, by a preponderance of the evidence, that the

“persecutor bar” did not apply.

In addition, the BIA affirmed denial of Ntamack’s request

for deferral of removal under CAT because Ntamack had failed to

demonstrate that it was more likely than not that he would be

tortured upon his return to Cameroon.

From the BIA’s decision, Ntamack filed this petition for

review, contending (1) that the BIA erred in finding him a

persecutor; (2) that the evidence showed that it was more likely

than not that he would be tortured on his return to Cameroon;

and (3) that the Department of Homeland Security and the State

9
Department, in their investigation of his claims abroad,

violated his right to confidentiality, protected by 8 C.F.R. §

208.6.*

II

We review the BIA’s factual findings under the substantial

evidence standard, reversing only if the evidence compels a

contrary finding. 8 U.S.C. § 1252(b)(4)(B).

For his principal argument on appeal, Ntamack challenges

the BIA’s determination that he engaged in persecutory conduct,

thus barring him from eligibility for asylum and withholding of

removal, under both the INA and CAT.

The “persecutor bar” precludes the applicant from asylum

and withholding of removal upon a finding that “the alien

ordered, incited, assisted, or otherwise participated in the

persecution of any person on account of race, religion,

nationality, membership in a particular social group, or

political opinion.” See 8 U.S.C. § 1158(b)(2)(A)(i) (asylum);

see also id. § 1231(b)(3)(B)(i) (withholding removal under the

INA); 8 C.F.R. § 1208.16(d)(2) (withholding removal under CAT).

*
Ntamack also seeks to challenge the immigration judge’s
adverse credibility finding. But because the BIA expressly
declined to consider the immigration judge’s credibility
determination, the issue is not properly before us. “[O]nly the
findings and order of the BIA, not those of the IJ,” are before
us on appeal. Li Fang Lin v. Mukasey, 517 F.3d 685, 687-88 &
n.2 (4th Cir. 2008).

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Physical participation in the persecution of others is not

required for the persecutor bar to apply. Rather, the test is

whether the applicant’s conduct objectively furthered the

persecution of others. See Higuit v. Gonzales, 433 F.3d 417,

421 (4th Cir. 2006); In the Matter of Federenko, 19 I. & N. Dec.

57, 69 (BIA 1984) (holding that alien’s subjective intent is

irrelevant and that persecutor bar applies if the objective

effect of alien’s actions is to further persecution, even if in

some “small measure”). If “evidence indicates” that the

applicant assisted or otherwise participated in persecution, the

burden then shifts to the applicant to prove by a preponderance

of the evidence that he did not contribute to the alleged

persecutory acts. 8 C.F.R. §§ 208.16(d)(2), 1208.16(d)(2); see

also Higuit, 433 F.3d at 420-21.

We conclude that, in this case, the record contains

substantial evidence to support the BIA’s finding that Ntamack’s

actions objectively furthered persecution. Ntamack testified to

his participation in quelling a student uprising at the

University of Yaounde by being more than a bystander. He stated

that “we” -- referring to the gendarmes, of which he was one --

beat the students and stood in a line driving them back.

Although he did state that he “held [him]self back a bit,” this

statement is insufficient to remove him from the persecutory

conduct. While he may have demonstrated some hesitation about

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repressive action and his participation may have been less

forceful than that of others, the fact remains that he stated

that he participated in the line pushing back and beating

students.

In addition, Ntamack furthered persecution simply by his

participation in what appears to be a phalanx or show of force

by the gendarmerie against the students. An alien’s physical

presence can provide assistance in persecution when that

presence impedes the movement of those persecuted or otherwise

subjects them to an increased risk of harm. See, e.g.,

Federenko, 19 I. & N. Dec. at 69 (unwilling Nazi prison guard

furthered persecution); Alvarado v. Gonzales, 449 F.3d 915, 928-

29 (9th Cir. 2006) (applicant’s presence and participation in

persecutory interrogation furthered persecution); Negele v.

Ashcroft, 368 F.3d 981, 983-84 (8th Cir. 2004) (Nazi guard who

merely patrolled perimeter of concentration camp furthered

persecution). Thus, Ntamack’s presence in the line that herded

and attacked students could well, by itself, have supported the

BIA’s finding of persecutory conduct.

Ntamack argues that the BIA erroneously concentrated on the

facts of his membership in a persecutory organization and the

length of that membership. While it is true that the BIA

recited those facts, which can indeed be relevant, see Higuit,

433 F.3d at 421 (citing Singh v. Gonzales, 417 F.3d 736, 740

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(7th Cir. 2005)), the BIA did not rely solely on his membership

to support the persecutory bar. Rather, it relied on Ntamack’s

actual participation in the effort to quell the uprising at the

university.

Ntamack also argues that even if his actions furthered

violence against the students, the record reflects that the

gendarmerie was acting to control a riot, rather than attack a

legitimate political demonstration. Accordingly, he reasons

that the gendarmerie was not acting in a persecutory manner

because it did not seek to harm the students on account of a

ground protected by the INA. The record, however, belies this

contention. Statements by Ntamack and others demonstrate that

the students were agitating in favor of democracy and freedom

and that the gendarmerie was sent to quell opposition to the

ruling party.

Finally, Ntamack contends that the BIA failed to credit his

“redemptive acts,” such as his warning Enane of the coming raid

on her dormitory and his urging others to negotiate or return to

their classrooms. But this evidence does not eliminate the

evidence that Ntamack himself aided some persecution, and only

some amount is necessary for the persecutor bar to apply.

Stated otherwise, while Ntamack’s redemptive activities show

that he was less than sympathetic with the repressive goals of

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his unit, they do not compel the conclusion that the persecutor

bar should not apply.

At bottom, substantial evidence supports the BIA’s

conclusion that Ntamack is statutorily barred from receiving

asylum and withholding removal under the INA and CAT.

III

Ntamack also challenges the BIA’s decision to deny him

deferral of removal under 8 C.F.R. § 1208.17(a), which provides

that removal may be deferred when an alien demonstrates that “he

or she is more likely than not to be tortured” if removed.

“Torture” is defined as “an extreme form of cruel and inhuman

treatment” that occurs by or with the consent or acquiescence of

“a public official or other person acting in an official

capacity.” Id. § 1208.18(a)(1)-(2). It does not include “pain

or suffering arising only from, inherent in or incidental to

lawful sanctions [such as] judicially imposed sanctions and

other enforcement actions authorized by law.” Id. §

1208.18(a)(3).

The BIA found that Ntamack had failed to show that it was

more likely than not that he would be tortured. While there is

evidence in the record that Ntamack was imprisoned three times

for insubordination and suspicion that he was supporting the

political opposition, the degree of mistreatment that he

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suffered is not totally clear. He did testify that he was

interrogated under difficult conditions, beaten (once to

unconsciousness), and otherwise mistreated while in prison, but

his testimony also indicates that he was subjected to

mistreatment during the initial phase of his incarceration and

only to incarceration thereafter. Moreover, he never sought

extensive medical attention as a result of his treatment by

authorities. And following the first two imprisonments, he was

released and allowed to return to work as an employee of the

government. The BIA concluded that Ntamack’s mistreatment did

not rise to the extreme level of “torture” as defined under CAT.

The BIA also found that no evidence indicated that the

government had any interest in him now, if he were to return,

except perhaps to punish him for escape. We conclude that the

BIA’s determination, while a close call, is nonetheless

supported by substantial evidence because it cannot be said that

the record compels a contrary conclusion, as required by 8

U.S.C. § 1252(b)(4)(B). Accordingly, we also affirm the BIA’s

decision on deferral.

IV

Finally, Ntamack claims that the overseas investigation

into the authenticity of his prison release orders, which was

conducted by the Department of Homeland Security and the State

15
Department, violated his right to confidentiality, protected by

8 C.F.R. § 208.6(a). He argues that we should remand this case

to the BIA so that he can pursue this claim further.

Ntamack did not, however, raise this argument before the

immigration judge or the BIA, and therefore we do not have

jurisdiction to consider the issue. “A court may review a final

order or removal only if the alien has exhausted all

administrative remedies available to the alien as of

right . . . .” 8 U.S.C. § 1252(d)(1); see also Asika v.

Ashcroft, 362 F.3d 264, 267 n.3 (4th Cir. 2004) (failure to

raise an argument before the BIA is failure to exhaust all

remedies under the statute).

For the foregoing reasons, we affirm the decision of the

BIA and deny Ntamack’s petition for review.

PETITION FOR REVIEW DENIED

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