Jean Noel Fongwo v. Alberto Gonzales, 1 Attorney General of the United States

430 F.3d 944, 2005 WL 3335301
CourtCourt of Appeals for the Eighth Circuit
DecidedDecember 9, 2005
Docket04-3014
StatusPublished
Cited by26 cases

This text of 430 F.3d 944 (Jean Noel Fongwo v. Alberto Gonzales, 1 Attorney General of the United States) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jean Noel Fongwo v. Alberto Gonzales, 1 Attorney General of the United States, 430 F.3d 944, 2005 WL 3335301 (8th Cir. 2005).

Opinions

COLLOTON, Circuit Judge.

Petitioner, who identifies himself as Jean Noel Fongwo, a native of Cameroon, applied for asylum, withholding of removal, and protection under the Convention Against Torture. An Immigration Judge denied his application, and petitioner filed a motion to reopen and reconsider. The IJ denied the motions, and the BIA affirmed that decision without opinion. Petitioner challenges the agency’s decision on the motions to reopen and reconsider, and we deny the petition for review.

I.

This case involves a dispute over the petitioner’s identity. In the hearing before the immigration court, petitioner al[946]*946leged that he fled Cameroon on account of his membership in the Social Democratic Front (“SDF”) and the Southern Cameroon National Council, political organizations in that country. Petitioner arrived in the United States bearing a passport with the name “Jean Tamu,” as well as a birth certificate and national identity card in the name of “Jean Tamu.” While he was processed by an officer at the Miami airport, however, petitioner stated that his name is actually “Jean Noel Fongwo.” Petitioner also entered the United States with two SDF membership cards and two letters bearing the name “Jean Noel Fongwo.”

Petitioner testified at the administrative hearing that his name is “Jean Noel Fong-wo,” and that he never used the name “Tamu.” He said that when he arrived in the United States, he presented authorities with a false passport in which a photograph of himself had been substituted for the real “Jean Tamu.” The government, however, presented evidence from a forensic document examiner that the passport was consistent with genuine Cameroon passports on file at the Immigration and Naturalization Service, that no alterations had been made to it, and that the photo had not been switched. The examiner also determined that the birth certificate (bearing the name “Tamu”), the national identity card (bearing the name “Tamu”), and the SDF cards (bearing the name “Fong-wo”) were consistent with genuine documents on file, and there was no evidence that the documents had been altered.

After granting petitioner a continuance to gather further documentation regarding his identity (A.R.285-89), the IJ eventually made an adverse credibility finding as to petitioner’s claimed identity, concluding that the applicant was not “Jean Noel Fongwo” but in fact “Jean Tamu.” The court relied on forensic evidence that the passport, identity card, and birth certificate in the name “Tamu” were genuine. The court further observed that the name of petitioner’s father was “Frederick Fongwo Tamu,” and that petitioner’s grandfather had “Tamu” in his name as well. The IJ gave little weight to a second birth certificate bearing the name “Fong-wo,” because it was not authenticated in accordance with 8 C.F.R. § 1287.6, and found that petitioner failed to present “objective, credible, and corroborating documentation” to show that he was actually “Jean Noel Fongwo.” The IJ also was unpersuaded by the SDF letters, which she found to be vague, general, and lacking in detail, and gave little weight to the SDF cards in the name of “Fongwo,” finding that “anybody can get an SDF card for approximately 50 cents.”

In addition to determining that petitioner misrepresented his identity, the IJ questioned the credibility of petitioner’s claim that he was a member of the SDF in Cameroon, because upon arriving in the United States, where freedom of speech is guaranteed, petitioner did not become involved in the SDF. The IJ concluded that petitioner’s claim of persecution based on membership in the SDF was undermined further by the fact that his mother was a member of the SDF in Cameroon, and that she continued to live there without incident after petitioner departed in 1999. With regard to petitioner’s overall claim for relief, the IJ noted that in the case of Matter of 0-D-, 21 I & N Dec. 1079, 1082 (BIA 1998), the BIA held that “documents of identity that are deemed to be fraudulent then undermine and affect the credibility of the whole entire claim.” The IJ discussed petitioner’s claim that the government violated the confidentiality rules of 8 C.F.R. § 208.6(a) by disclosing the name “Fongwo” to officials of the Cameroon government in the course of making inquiries relevant to the asylum application. The IJ found no transgression because petition[947]*947er’s true name was “Jean Tamu,” and that name was not disclosed.

The IJ determined that because petitioner misrepresented his identity and submitted fraudulent documents in support of his claim, the application for asylum was frivolous. Accordingly, the IJ barred petitioner from receiving benefits from the United States under the Immigration and Nationality Act. See 8 U.S.C. § 1158(d)(6).

Petitioner did not appeal the IJ’s order to the BIA, but instead filed a motion to reopen and reconsider the IJ’s decision, and to stay removal. The IJ denied the motions, and petitioner appealed to the BIA, which affirmed without opinion.

II.

Petitioner claims that the IJ abused her discretion by denying his motions to reopen and reconsider.2 Regarding his motion to reopen, petitioner claims that the IJ abused her discretion by refusing to consider new evidence not presented at the prior hearing. This new evidence included a Catholic Testimonial Book, a U.S. Peace Corps Certificate of Attendance, and a second Cameroon National Identity Card, all of which were issued to “Fongwo.” Petitioner asserted in a sworn declaration that these documents were “not available” at the time of the prior hearing, because he had relied on the advice of his attorney, who did not ask him to make these documents available.

Motions to reopen deportation proceedings are particularly disfavored, as “every delay works to the advantage of the deportable alien who wishes merely to remain in the United States.” INS v. Doherty, 502 U.S. 314, 323, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992). Motions to reopen must state new facts that are material to the outcome of the proceeding and were neither available nor discoverable at the prior hearing. 8 C.F.R. § 1003.23(b)(3). In other words, an IJ should grant motions to reopen only if the new evidence presented “could not by the exercise of due diligence have been discovered earlier.” Krougliak v. INS, 289 F.3d 457, 460 (7th Cir.2002) (quoting Matter of Coelho, 20 I & N Dec. 464, 472 n. 4 (BIA 1992)). We review the IJ’s decision to deny petitioner’s motion to reopen for abuse of discretion. Doherty, 502 U.S. at 323, 112 S.Ct. 719; Feleke v. INS, 118 F.3d 594, 597-98 (8th Cir.1997).

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Bluebook (online)
430 F.3d 944, 2005 WL 3335301, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jean-noel-fongwo-v-alberto-gonzales-1-attorney-general-of-the-united-ca8-2005.