Gandziami-Mickhou v. Gonzales

• Decision Date: 17 April 2006
• Docket Number: No. 04-2428.,04-2428.
• Citation: 445 F.3d 351
• Parties: Ela GANDZIAMI-MICKHOU, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Fourth Circuit

445 F.3d 351

Ela GANDZIAMI-MICKHOU, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

No. 04-2428.

United States Court of Appeals, Fourth Circuit.

Argued November 30, 2005.

Decided April 17, 2006.

ARGUED: Stacie Lieberman, American University, Washington College of Law, Law Clinic, Washington, D.C., for Petitioner. Song E. Park, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for Respondent. ON BRIEF: Richard J. Wilson, Supervising Attorney, Washington College of Law, International Human Rights Clinic, Washington, D.C., for Petitioner. Peter D Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, Erica A. Franklin, Trial Attorney, Civil Division, United States Department of Justice, Washington, D.C., for Respondent.

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Petition for review denied by published opinion. Judge SHEDD wrote the opinion, in which Judge WILKINSON and Judge KING joined.

OPINION

SHEDD, Circuit Judge.

Ela Gandziami-Mickhou, a native and citizen of the Republic of Congo, was admitted to the United States in January 2002 as a non-immigrant student to attend Avila College in Kansas City, Missouri. After Gandziami-Mickhou failed to return to the college following the Spring 2002 semester, the Immigration and Naturalization Service ("INS") issued a Notice to Appear, charging her as removable for failing to comply with the conditions of her visa. Gandziami-Mickhou subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An Immigration Judge ("IJ") denied Gandziami-Mickhou's applications, concluding that she failed to meet her burden of proof on each of her claims. The Board of Immigration Appeals ("BIA") affirmed the IJ's decision under its streamlined process of review. Gandziami-Mickhou now petitions for review of the BIA's decision, arguing primarily that the IJ violated our decision in Camara v. Ashcroft, 378 F.3d 361 (4th Cir.2004), by disregarding corroborating evidence that she submitted in her application for asylum and withholding of removal. For the reasons that follow, we deny the petition for review.

I.

Under the Immigration and Nationality Act ("INA"), the Attorney General has authority to confer asylum on any refugee. 8 U.S.C. § 1158(b). To qualify as a refugee, an alien must be unwilling or unable to return to her native country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). The "well-founded fear of persecution" standard contains both subjective and objective components. Chen v. INS, 195 F.3d 198, 201 (4th Cir.1999). To satisfy the subjective component, an applicant must present "candid, credible, and sincere testimony demonstrating a genuine fear of persecution." Id. (internal quotations omitted). The objective component requires "specific, concrete facts that a reasonable person in like circumstances would fear persecution." Id. at 202. The applicant for asylum bears the ultimate burden of proving her status as a refugee. 8 C.F.R. § 1208.13(a) (2004).

To qualify for withholding of removal, an applicant must demonstrate a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). This is a more stringent standard than that for asylum. Chen, 195 F.3d at 205. Unlike the grant of asylum (where an alien is entitled to remain in the United States), withholding of removal merely bars the deportation of an alien to a particular country. INS v. Aguirre-Aguirre, 526 U.S. 415, 419, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999). Further, while asylum is discretionary, if an alien establishes eligibility for withholding of removal, the grant is mandatory. Id. at 420, 119 S.Ct. 1439.

To qualify for protection under the CAT, an applicant must prove that it is "more likely than not that he or she would be tortured if removed to the proposed country of removal." 8 C.F.R. § 208.16(c)(2). We have concluded that this standard for the CAT is independent from the standard for determining asylum, and an adverse credibility finding alone cannot preclude protection under the CAT. Camara, 378 F.3d at 372.

For purposes of review of a final order of removal issued under the streamlined process, the IJ's reasoning becomes the final BIA determination. Id. at 366. In reviewing the BIA's decision regarding an order of removal, whether streamlined or not, we uphold the decision if it is not "manifestly contrary to law." 8 U.S.C. § 1252(b)(4)(C) (2004). Further, we give great deference to the factual findings by the BIA, as those factual findings "are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." Id. § 1252(b)(4)(B). For this reason, the substantial evidence test for review of the BIA's conclusions mandates affirmance if the evidence is not "so compelling that no reasonable factfinder could" agree with the BIA's factual conclusions. Huaman-Cornelio v. BIA, 979 F.3d 995, 999 (4th Cir.1992). We also defer to the BIA's credibility findings that are supported by substantial evidence. Camara, 378 F.3d at 367.

II.

A.

Gandziami-Mickhou seeks immigration relief based on her and her family's purported involvement with the Congolese Movement for Democracy and Integral Development (MCDDI). In the proceedings before the IJ, Gandziami-Mickhou presented evidence tending to show the following.

Gandziami-Mickhou's father was a successful businessman and a close friend of the MCDDI leader, Bernard Kolelas. Gandziami-Mickhou's father joined the MCDDI when it was created in 1989, and he also helped finance the organization. Gandziami-Mickhou joined the MCDDI in 1996 and soon became responsible for recruiting and mobilizing its younger members.

In October 1997, General Sassou Nguesso, a member of the Congolese Labor Party, overthrew democratically elected president Pascal Lissouba. Gandziami-Mickhou's family had lived across the street from Lissouba in Brazzaville, Congo's capital city. Nguesso implemented a dictatorship and began oppressing political opponents. Gandziami-Mickhou's husband's uncle was a minister within Lissouba's government, but he went into exile when Nguesso overthrew the government. Gandziami-Mickhou's family also fled Brazzaville when Nguesso took control. When Gandziami-Mickhou's family returned to Brazzaville in January 1998, they moved to a different neighborhood.

Gandziami-Mickhou was twice recognized as a member of an opposition party. In October 1998, a colonel in Nguesso's army threatened Gandziami-Mickhou and asked her why she was not in exile. The colonel stated that he would come back for her. Two months later, war broke out in Brazzaville, and Gandziami-Mickhou fled into the forest where she lived for several months without sufficient food and water. Occasionally soldiers from Nguesso's military would harass the families hiding in the forest, and they severely beat Gandziami-Mickhou's brother.

In April 1999, a refugee camp in the neighboring Democratic Republic of Congo accepted Gandziami-Michkou, and she stayed in the camp for five months before returning to Brazzaville. When Gandziami-Mickhou returned to Brazzaville, she discovered that her family's house had been burned. Neighbors told Gandziami-Mickhou that it had been intentionally destroyed by Nguesso because of her family's political opposition.

In March 2001, Gandziami-Mickhou was abducted from her home in the middle of the night by armed men in uniform. Gandziami-Mickhou knew the men were part of Nguesso's army from the way they talked and dressed. The men detained Gandziami-Mickhou in a tiny room with four other women for two weeks and repeatedly raped her because she supported Kolelas. When Gandziami-Mickhou initially resisted, a guard beat her with his belt, leaving a scar. Gandziami-Mickhou was released after she became sick. After recovering, Gandziami-Mickhou attempted suicide by overdosing on pills.

Because of these events, Gandziami-Mickhou's father suggested she leave Congo for a while. Gandziami-Mickhou began looking at schools in the United States and was eventually accepted to Avila College. Gandziami-Mickhou's father agreed to pay for her tuition. Before she left for the United States, Gandziami-Mickhou's family received threatening letters directed at her father.

Gandziami-Mickhou came to the United States in January 2002. Two months later, Nguesso's government arrested Gandziami-Mickhou's father as he was returning from a trip abroad, during which he met with Lissouba and Kolelas. Gandziami-Mickhou's father was killed shortly thereafter. In April 2002, Nguesso's men killed Gandziami-Mickhou's uncle. Gandziami-Mickhou's mother then began receiving death threats stating she would be next. Gandziami-Mickhou's family fled to southern Congo to hide in her father's village. Gandziami-Mickhou has not heard from them since they went into hiding. During this time, several of Gandziami-Mickhou's relatives' homes have been destroyed by Nguesso's regime.

Because Gandziami-Mickhou failed to return to college following the Spring 2002 semester, the INS issued a Notice to Appear, charging her as removable for failing to comply with the conditions of her visa. Gandziami-Mickhou filed her initial application for immigration relief in September 2002. Gandziami-Mickhou significantly amended her application in May 2003, adding allegations regarding the 2001 arrest and rape.

At a hearing before the IJ, Gandziami-Mickhou conceded removability, but she presented the foregoing evidence in support of her application for relief. Additionally, Gandziami-Mickhou introduced a number of documents in support of her application. Gandziami-Mickhou submitted an affidavit from her sister who has lived in...