Thomas Bassanguen v. Eric Holder, Jr.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-1699

THOMAS DECZEM BASSANGUEN,

Petitioner,

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Petition granted in part; vacated and remanded by unpublished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Unpublished opinions are not binding precedent in this circuit.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.

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.

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.

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.

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).

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.

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.

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.

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.