495 F.3d 113 (4th Cir. 2007), 06-1277, Dankam v. Gonzales

Docket Nº:06-1277.
Citation:495 F.3d 113
Party Name:Catherine Angele DANKAM, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
Case Date:July 16, 2007
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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495 F.3d 113 (4th Cir. 2007)

Catherine Angele DANKAM, Petitioner,

v.

Alberto R. GONZALES, Attorney General, Respondent.

No. 06-1277.

United States Court of Appeals, Fourth Circuit.

July 16, 2007

Argued: March 14, 2007.

On Petition for Review of an Order of the Board of Immigration Appeals, A96-092-718.

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ARGUED:

Clement Anyeh Tatoh, Immigration Assistance Center, Silver Spring, Maryland, for Petitioner. George Maralan Kelley, III, Assistant United States Attorney, Office of the United

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States Attorney, Norfolk, Virginia, for Respondent. ON BRIEF: Bokwe G. Mofor, Silver Spring, Maryland, for Petitioner. Chuck Rosenberg, United States Attorney, Alexandria, Virginia, for Respondent.

Before MOTZ, TRAXLER, and SHEDD, Circuit Judges.

Petition for review denied by published opinion. Judge TRAXLER wrote the majority opinion, in which Judge MOTZ joined.

Judge SHEDD wrote a concurring opinion.

OPINION

TRAXLER, Circuit Judge:

Catherine Angele Dankam is a native and citizen of the Republic of Cameroon. She arrived in the United States in November 2002 as a nonimmigrant visitor for pleasure with permission to remain in the United States until April 23, 2003. Dankam overstayed her visa and received a Notice to Appear charging her as removable on this basis. See 8 U.S.C. § 1227(a)(1)(B). Dankam concedes removability. In October 2003, eleven months after arriving in the United States, Dankam applied for political asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). The immigration judge denied all forms of relief sought by Dankam, and the Board of Immigration Appeals ("BIA") affirmed without opinion under its streamlined review process. See 8 C.F.R. § 1003.1(e)(4). Dankam now petitions this court for review of the decision of the BIA. For the reasons that follow, we deny the petition for review.

I.

A.

Under the Immigration and Nationality Act ("INA"), the Attorney General is vested with the discretion to grant asylum to aliens who qualify as "refugees." See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A); INS v. Ventura, 537 U.S. 12, 13, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam). The INA defines "refugee" as someone "who is unable or unwilling to return to" his native country "because of persecution or a well-founded fear of persecution on account of ... political opinion" or other protected grounds. 8 U.S.C. § 1101(42)(A). An asylum applicant "may qualify as a refugee either because he or she has suffered past persecution or because he or she has a well-founded fear of future persecution." 8 C.F.R. § 1208.13(b). The burden of proof with respect to refugee status rests with the applicant. See 8 C.F.R. § 208.13(a); Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353 (4th Cir.2006).

The applicant's burden is even greater to qualify for withholding of removal to a particular country under the INA, which requires the alien to demonstrate a "clear probability of persecution" on account of a protected ground. INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (internal quotation marks omitted). The payoff in return for the more stringent qualification standard is that withholding of removal is not a discretionary form of relief; it is mandatory. See 8 U.S.C. § 1231(b)(3)(A); INS v. Aguirre-Aguirre, 526 U.S. 415, 420, 119 S.Ct. 1439, 143 L.Ed.2d 590 (1999).

Finally, an alien seeking protection under the CAT must show "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). The likelihood of torture, however, need not be tied to a protected ground under the CAT. See Yang v. Gonzales, 478 F.3d 133, 141 (2nd Cir.2007). "Withholding and

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deferral of removal under the CAT are mandatory forms of relief that hinge on risk within the country to which the Government is seeking expulsion. Instead of focusing on persecution and nexus to protected grounds, CAT relief requires the applicant to show that he or she would more likely than not be tortured, and it does not require a nexus to any ground." Id. (internal citation omitted).

B.

In her application, Dankam claimed membership in the Union of Cameroon Democratic Forces ("UCDF"), a political party opposed to the Cameroonian government, and she asserted that on three occasions she suffered persecution because of her political views. According to her application, in April 2000 Dankam attended a UCDF demonstration against the killing of policemen who criticized government corruption. Allegedly, Dankam was arrested, beaten, and placed in detention at the Ndokotti Police Station for two days. Dankam asserted that during her detention, she was beaten and warned that her continued political activism would be punished harshly. Dankam indicated that her husband bribed officials to secure her release.

According to her application, the second incident occurred during a UCDF protest of the Biya government's treatment of inmates at the New Bell prison where a number of prisoners allegedly died in November 2001. After the police used water cannons, tear gas and batons to disperse the protesters, Dankam was arrested and detained for three days; the UCDF purportedly arranged for the release of a number of prisoners including Dankam. The application did not include details of her treatment during this detention and failed to specify when it occurred.

The final incident allegedly occurred on June 25, 2002, when Dankam "was distributing tracts calling for the boycott of the June 30, 2002, elections because of the failure of the ruling party . . . to create an Independent Election Commission." J.A. 61. Dankam claimed that she was arrested and again held for three days. Dankam did not provide details regarding her treatment by officials during her third detention, except to characterize the experience generally as "a living hell." J.A. 61.

Dankam asserts eligibility for asylum based on past persecution (the arrests and detentions) as well as a fear of future persecution by government agents if she returned to Cameroon "because of [her] past political activism and the persistent search by security forces after [her] departure." J.A. 66. The mistreatment purportedly feared by Dankam included "emotional distress due to intimidation and threats, arbitrary arrests and detention, mistreatment in detention," J.A. 66, and even torture "due to the fact that torture is commonly practiced by the authorities on political opponents . . . and even ordinary citizens detained for minor offenses." J.A. 67.

At the immigration hearing, Dankam testified about the three arrests noted in her asylum application. Dankam reiterated that she was arrested in April 2000 for distributing UCDF pamphlets and detained for two days at a police station in Douala. Laurent Messi, an attorney from Cameroon who enjoys political asylum in the United States, appeared at the hearing to corroborate various aspects of Dankam's testimony, including the fact of her first detention. Messi testified that he visited Dankam during the second day that she was in detention, that Dankam's release did not occur until "well after" his visit and that she spent "considerably more than two days" in prison. A.R. 124.

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Dankam submitted a purported medical certificate dated April 20, 2000, indicating that she "was suffering from several swellings and wounds on the left leg" as well as "trauma and lesions of the left eye," but not explaining the cause of Dankam's injuries. A.R. 373. The April 20, 2000, medical document indicated that Dankam would be "[i]ncapacit[ated]" for forty days. A.R. 373. The record also includes an undated medical document stating that Dankam "showed symptoms of rape with swellings on the thighs, as well as lesions on the legs and knees." A.R. 371. At the hearing, however, Dankam testified that, despite her symptoms, she was not raped in prison.

Dankam indicated that her husband obtained a passport and a United States visa for her. The passport was in Dankam's own name, but she was allowed to leave Cameroon because airport authorities did not recognize her as a person wanted by the government. Dankam also testified that, although her husband and children were members of the UCDF, they were not as active as she was, and therefore it was not imperative that they flee Cameroon. Therefore, Dankam's husband and children remained behind in Cameroon when she departed for the United States.

Dankam testified that after arriving in the United States in November 2002, she continued her association with the UCDF, attending rallies and demonstrations in front of the Cameroonian Embassy in Washington, D.C., and New York. Dankam believes that her continued political activity in the United States is known to the ruling government in Cameroon through its agents located in this country. Dankam called as a witness Jules Contchou, a political asylee and a member of the UCDF in Washington, D.C. Contchou confirmed Dankam's participation in UCDF rallies in the United States and opined that her activities here were under surveillance by...

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