Boutou v. Gonzales

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES CO URT O F APPEALS October 20, 2006 FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker Clerk of Court

EM M A N U EL K O TTO BO U TOU,

Petitioner,

v. No. 06-9507 (No. A97-923-376) ALBERTO R. GONZA LES, (Petition for Review) Attorney General,

Respondent.

OR D ER AND JUDGM ENT *

Before H E N RY, A ND ER SO N, and M cCO NNELL, Circuit Judges.

Petitioner Emmanuel Kotto Boutou seeks review of a final order of removal

issued by an immigration judge (IJ) denying M r. Boutou’s requests for asylum,

restriction on removal, and relief under the U nited N ations Convention Against

Torture (CAT). The Board of Immigration Appeals (BIA) affirmed the IJ’s

* After examining the briefs and appellate record, this panel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. decision without opinion. W e have jurisdiction to review the final order of

removal under 8 U.S.C. § 1252(a)(1), and we deny the petition.

Background

The IJ based his denial of relief entirely on his finding that M r. Boutou was

not credible. In recounting the factual background, therefore, we describe the

facts according to M r. Boutou, and we discuss the documentary evidence where

appropriate.

M r. Boutou is a native and citizen of Cameroon and obtained a degree in

political science and economy from the University of Yaounde in 1992. Yaounde

is the capital of Cameroon. In 1991, he joined a vigilance group opposed to the

regime of Cameroonian President Paul Biya. M r. Boutou and fourteen other

members of the group were arrested by the police for their role in organizing a

strike to force the government to address problems such as poverty and

unemployment. They were detained for five days in a small cell with no toilet,

beaten daily with a baton on the soles of their feet and elsewhere, and released on

the condition that they discontinue their protests against the government.

In 1992, M r. Boutou joined the Social Democratic Front (SD F), another

group opposed to President Biya’s regime. In 1997, M r. Boutou and seven other

SDF members w ere arrested by gendarmerie members for urging Cameroonians to

boycott the presidential election. They were detained for three days in a small

cell with no toilet and were mentally and physically tortured. The torture

-2- included being forced to stare at the sun and to lie on the floor in water. Failure

to do either of these things was met with beatings on the buttocks, and

M r. Boutou was beaten a number of times.

On February 20, 1999, M r. Boutou spoke at an SDF protest rally

concerning underemployment. He and two others were arrested by both police

and gendarmes for participating in the rally. Three days after he was arrested,

M r. Boutou was tried, convicted of opposing the government, and sentenced to

four years’ imprisonment. He twice testified that he was sent to the Yoko prison

a few days after his trial in February 1999, but the purported release document he

offered as evidence indicated that he was first incarcerated in the Douala prison

on February 23, 1999, and transferred to Yoko on June 2, 2000. He testified that,

during his first month of incarceration at Yoko, he was beaten and tortured daily,

including by the administration of electric shocks to his genitals.

W hile in Yoko, M r. Boutou was at times escorted out on work details that

often were supervised by persons other than prison guards. He met two different

women while on these work details, had sexual intercourse with each one once,

and fathered a child by each woman. The children were born in April and M ay

2001. The two encounters with the women occurred three months after he had

received the electric shock treatments at Yoko.

Sometime in 2001, M r. Boutou asked one of the prison guards at Yoko to

drive him to the city of D ouala, a round trip of approximately 400-500 kilometers,

-3- so that he could obtain a passport. The guard apparently agreed, and M r. Boutou

secured a valid Cameroonian passport in his own name.

M r. Boutou testified that he was released from Yoko on February 22, 2002,

before the expiration of his four-year sentence, because President Biya randomly

selected prisoners for early release. But the purported release document indicated

that he was released on July 22, 2002.

On November 6, 2002, M r. Boutou spoke at a political rally in Yaounde.

Police and gendarmes broke up the rally and arrested eleven SDF members, but

M r. Boutou eluded capture and went into hiding in a small village fifteen

kilometers from Yaounde. The police searched his home and destroyed his

property.

W hile he was in hiding and with the SDF’s assistance, M r. Boutou traveled

into Yaounde a number of times. On one occasion, he obtained a Cameroonian

passport in the name of Emile Sendji M atanga and a visitor visa in that name from

the United States embassy in Yaounde. On other occasions he went to the bank

and to see a doctor. Later, he was escorted by a high-ranking gendarme to the

airport where he bribed an airport officer to obtain a boarding pass for a plane

bound for the United States. He entered the United States in Atlanta, Georgia, on

or about January 31, 2003, claiming to be M r. M atanga, and moved soon

thereafter to Oklahoma City, Oklahoma. He applied for asylum in November

2003.

-4- M r. Boutou had an initial asylum interview in Houston, Texas. Another

Cameroonian drove him there from Oklahoma City. He was then ordered to

appear before an IJ. At that hearing, M r. Boutou conceded removability but

argued that he was entitled to asylum, restriction on removal, and relief under the

CAT. Finding M r. Boutou completely lacking in credibility, the IJ entered an oral

decision denying relief, stating, among other findings, that it was “one of the

most flagrant misrepresentations [the Court] has encountered” and that “[t]he

Court doesn’t believe a w ord he said here today, and . . . he has [not] come close

to establishing anything here, much less that he suffered persecution in the past or

torture.” Admin. R. at 48. The IJ found that the asylum application was frivolous

but refrained from entering an order to that effect out of concern that M r. Boutou

had not been previously warned that knowingly filing a frivolous application can

render an alien permanently ineligible for benefits under the immigration laws.

See 8 U.S.C. § 1158(d)(6) (requiring appropriate notice to trigger permanent

ineligibility). The IJ denied M r. Boutou’s application for voluntary departure.

The BIA affirmed, and this petition for review followed.

Analysis

M r. Boutou seeks asylum, restriction on removal, and relief under the CAT.

To be eligible for a discretionary grant of asylum, M r. Boutou must first show

that he is a refugee. Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004).

To establish refugee status, he must demonstrate that he suffered past persecution

-5- or has “a well-founded fear of [future] persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.”

8 U .S.C . § 1101(a)(42)(A ). If M r. Boutou proves refugee status, he must then

persuade the Attorney General to exercise his discretion and grant relief. See id.

§ 1158(b)(1)(A ). If M r. Boutou cannot meet the asylum standard, he “will

necessarily fail to meet the higher standards required for restriction on removal

under the [Immigration and Nationality Act] or withholding of removal under the

[CAT].” Solomon v. Gonzales, 454 F.3d 1160, 1163 (10th Cir. 2006).

The BIA issued a per curiam decision affirming the IJ’s decision pursuant

to 8 C.F.R. § 1003.1(e)(4). W e therefore review the IJ’s decision as if it were the

BIA ’s. Wiransane, 366 F.3d at 897. “The IJ’s adverse asylum decision must be

upheld if supported by reasonable, substantial and probative evidence on the

record as a whole.” Id. (quotation omitted). The IJ’s “findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

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

The substantial evidence test applies to credibility determinations. See

Wiransane, 366 F.3d at 897. “[B]ecause of the inherent difficulties a purported

refugee may have in obtaining documentation to back up his claims, . . . an

applicant’s testimony, ‘if credible . . . may be sufficient to sustain the

[applicant’s] burden of proof without corroboration.’” Id. (quoting 8 C.F.R.

§ 208.13(a)) (second omission and second alteration in original). Therefore, “an

-6- IJ generally must give specific, cogent reasons for an adverse credibility finding.”

Wiransane, 366 F.3d at 897 (quotation omitted). 1

An IJ may base an adverse credibility finding on such factors as

inconsistencies in the asylum applicant’s testimony, lack of sufficient detail,

implausibility, and testimonial demeanor. Elzour v. Ashcroft, 378 F.3d 1143,

1152-53 (10th Cir. 2004). But “[a]n IJ’s finding that an applicant’s testimony is

implausible may not be based upon speculation, conjecture, or unsupported

personal opinion.” See id. at 1153.

M r. Boutou generally argues that the IJ based his credibility determination

on unsupported personal opinion. M ore specifically, he first asserts that his

testimony concerning overcrowding and lack of sanitation during his

confinements is consistent with the U nited States D epartment of State Country

Report for Cameroon issued on February 25, 2004, which he submitted in support

of his application. Although his testimony concerning such conditions is

consistent with the Country Report, the IJ did not specifically comm ent on that

testimony except to recite that M r. Boutou had described those conditions. There

1 The REAL ID Act of 2005 includes new provisions relating to agency credibility determinations, now codified at 8 U .S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(C), and 1231(b)(3)(C). These provisions, however, only apply to aliens who applied for asylum or other relief after M ay 11, 2005, the effective date of the Act. See Pub. L. No. 109-13, div. B, § 101(h)(2), 119 Stat. 231, 305. M r. Boutou applied for asylum, restriction on removal, and CAT relief in 2003. Hence, these new provisions do not apply to his claims.

-7- is no indication that the IJ placed any importance on whether M r. Boutou’s

description of the overcrowding and lack of sanitation was credible or not.

M r. Boutou next takes issue with the IJ’s finding that his claim to have

fathered two children w hile imprisoned in Y oko w as part of the “preposterous”

manner in which he testified, Admin. R. at 44. M r. Boutou compares this finding

with the credibility determination in Elzour concerning the implausibility of the

length and basis of the alien’s purported detention by the Syrian government, see

Elzour, 378 F.3d at 1153. W e held in Elzour that the IJ’s adverse credibility

finding was in error because it was based “on the IJ’s own expectations as to how

the Syrian government operated,” id. at 1154, and was at odds w ith

uncontradicted materials in the record, id. at 1153.

Contrary to M r. Boutou’s argument, Elzour does not compel a similar

conclusion in this case concerning the IJ’s finding that M r. Boutou’s claim to

have fathered children while imprisoned at Yoko was implausible. The IJ based

this finding on the inherent inconsistency in the range of treatment, from torture

to extreme permissiveness, M r. Boutou claimed he received while incarcerated,

not on the IJ’s own personal opinion concerning the degree of freedom prison

officials might have permitted. And the IJ’s finding is not inconsistent with the

statement in the Country Report to which M r. Boutou apparently refers, that

“[p]risoners sometimes could bribe wardens for special favors or treatment,

including temporary freedom,” Admin. R. at 189. M r. Boutou never referenced

-8- bribing a warden or anyone else. He testified that he met the mothers of his

children while on work details that sometimes were supervised by persons other

than prison guards. Id. at 106-07. Thus, M r. Boutou has not demonstrated an

inconsistency with the record that calls into question the IJ’s finding concerning

the plausibility that he fathered children while at Yoko. In any event, that finding

was made on the implicit assumption that M r. Boutou was in fact incarcerated at

Yoko. But from the IJ’s sweeping statement that he did not “believe a word”

M r. B outou had said, id. at 48, it appears that the IJ did not believe that

M r. Boutou had ever been incarcerated on any of the occasions he claimed. In the

face of this ultimate finding, the issue of whether M r. Boutou’s story about

fathering children while in prison was credible approaches immateriality.

M r. Boutou next cites to de Leon-Barrios v. INS, 116 F.3d 391, 393

(9th Cir. 1997), in support of his proposition that “an adverse credibility finding

will not be upheld when it is solely supported by minor inconsistencies and minor

omissions relating to unimportant facts,” Aplt. Opening Br. at 8. 2 M r. Boutou

contends that the IJ relied on two minor inconsistencies. First, M r. Boutou points

2 In de Leon-Barrios, the Ninth Circuit was faced with inconsistencies that “involved the heart of the asylum claim.” de Leon-Barrios, 116 F.3d at 394 (quotation omitted). W ith the passage of the REAL ID Act, Congress appears to have overridden this limitation with what is now codified at 8 U.S.C. § 1158(b)(1)(B)(iii). That section provides, in pertinent part, that a trier of fact may base a credibility determination on “all relevant factors . . . without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Id. Again, this provision applies only to asylum applications filed after M ay 11, 2005. See supra note 1. It does not apply to this case.

-9- to the following statement the IJ made about the date M r. Boutou joined the SDF:

“He indicates that he joined that party in, it’s not clear whether it’s ‘89 or ‘92, but

in any event, he says he was arrested and incarcerated on at least three separate

occasions . . . .” Admin. R. at 41. There is no indication that the date on which

M r. Boutou claimed to have joined the SDF was material to the IJ’s adverse

credibility finding. The IJ mentioned this 1989/1992 issue only once, in passing,

and did not refer back to it.

The second inconsistency M r. Boutou characterizes as minor is the

discrepancy concerning the dates of his purported imprisonment at Yoko.

Contrary to M r. Boutou’s argument, this is not a minor inconsistency. Given the

alleged gravity of M r. Boutou’s detention, it was reasonable for the IJ to expect

him to have the dates that he arrived at and was released from Yoko generally

correct if he had in fact been imprisoned there. But the dates M r. Boutou gave

were substantially different than those in the purported release document he

himself submitted. He initially testified that he arrived at Yoko immediately after

his February 1999 conviction, which was some sixteen months earlier than the

date noted in the document, June 2, 2000. The date he adamantly claimed he was

released on, February 22, 2002, was five months earlier than the date in the

document, July 22, 2002.

Furthermore, the IJ found that M r. Boutou’s testimony that he was released

on February 22 conflicted with information contained in a doctor’s letter that

-10- M r. Boutou submitted. In the letter, the doctor stated that he had treated

M r. Boutou, to whom he referred as a “student at the college of law studies of the

University of Yaounde,” id. at 179, 3 for chronic dysentery from February 1, 2002,

until November 15, 2002. M r. Boutou maintained that the doctor’s letter was

incorrect as to the date on which treatment began because the doctor did not treat

him in prison, and he was still in prison on February 1. The result was substantial

confusion concerning these dates that M r. Boutou was unable to explain to the

IJ’s satisfaction.

Even if we agreed with M r. Boutou that the conflicting imprisonment and

release dates were minor inconsistencies, the IJ gave other, unchallenged reasons

that adequately support his finding. Those reasons include: (i) the IJ’s

observation of M r. Boutou’s demeanor evidencing evasiveness and an attempt to

confuse, in particular while explaining why he presented himself as Emile

M atanga upon entry rather than seeking asylum immediately in his own name;

(ii) the fact that letters written in 2003, one purportedly by the SDF secretary and

one purportedly by two individuals active in the Cameroonian bar association,

failed to reference M r. Boutou’s arrests and imprisonment; (iii) the inconsistency

between the doctor’s reference to M r. Boutou as a law student and M r. Boutou’s

testimony that he had not been in school for some time; (iv) the inconsistency

3 W e rely on the English translation of the doctor’s letter, which is in French, that M r. Boutou provided.

-11- between M r. Boutou’s claim to have been in hiding and his testimony that he

ventured out into Y aounde to obtain a passport; (v) the implausibility of his story

that he was able to obtain a high-ranking gendarme to escort him to the airport;

and (vi) the fact that other Cameroonians in the Oklahoma City area who knew

M r. Boutou did not testify on his behalf, from which the IJ drew an adverse

inference. These additional specific, cogent reasons adequately support the IJ’s

adverse credibility finding even without reference to the inconsistent

imprisonment and release dates.

M r. Boutou’s final specific argument that the IJ based his credibility

determination on unsupported personal opinion is that his claim that he was

tortured in prison is supported by the Country Report. The Country Report does

state that torture is widespread in the Cameroon prisons. Id. at 188. But “the

purpose of country conditions evidence . . . is not to corroborate specific acts of

persecution (which can rarely be corroborated through documentation), but to

provide information about the context in which the alleged persecution took

place, in order that the factfinder may intelligently evaluate the petitioner’s

credibility.” Duarte de Guinac v. INS, 179 F.3d 1156, 1162 (9th Cir. 1999).

Documentary evidence of country conditions can help to establish an objective

basis for a claim by placing an asylum applicant’s testimony into context, but it

cannot independently establish the claim. Zahedi v. INS, 222 F.3d 1157, 1163

(9th Cir. 2000). The fact that the Country Report supports M r. Boutou’s

-12- allegations of torture, therefore, does not mean that the IJ was required to believe

those allegations. In view of the many other credibility problems the IJ identified

that called into serious doubt M r. Boutou’s claim to have been imprisoned at all,

the IJ justifiably disbelieved M r. Boutou’s claim to have been tortured despite its

consistency with the Country Report.

Conclusion

Substantial evidence supports the IJ’s denial of M r. Boutou’s asylum

application. Because M r. Boutou has failed to meet the standard for asylum, he

has necessarily failed to meet the more stringent requirements for restriction on

removal and relief under the CAT. See Solomon, 454 F.3d at 1163. Accordingly,

the petition for review is D EN IED.

Entered for the Court

M ichael W . M cConnell Circuit Judge

-13-