Anim v. Mukasey
| Decision Date | 11 August 2008 |
| Docket Number | No. 07-1373.,07-1373. |
| Citation | 535 F.3d 243 |
| Parties | Dorothy ANIM, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Kim-Bun Thomas Li, Washington, D.C., for Petitioner. Jem Colleen Sponzo, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
ON BRIEF:
Peter D. Keisler, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director, Office of Immigration Litigation, Mona Maria Yousif, Civil Division, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for Respondent.
Before MICHAEL and MOTZ, Circuit Judges, and Irene M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.
Petition for review granted; vacated and remanded by published opinion. Judge MICHAEL wrote the opinion, in which Judge MOTZ and Judge KEELEY joined.
Dorothy Anim, a citizen of Cameroon, petitions for review of the denial of her application for asylum and other relief. As part of her case before the immigration judge (IJ), Anim submitted copies of three convocations (summonses to appear) issued to her by the Cameroon police shortly after she fled the country. The IJ denied Anim's application, relying mainly on a letter authored by a U.S. Department of State official that reported, based on an overseas investigation, that the convocations were fraudulent. The Board of Immigration Appeals (BIA) affirmed the IJ's decision. In her petition for review in this court, Anim raises two claims relating to the overseas fraud investigation as described in the Department of State letter. First, Anim claims that the letter establishes that her right to a confidential asylum application was breached during the course of the overseas investigation, in violation of 8 C.F.R. § 208.6. Second, Anim claims that the IJ's reliance on the letter, which lacks any meaningful indicia of reliability, violated her right to due process. Concluding that Anim's claims are meritorious, we grant the petition for review, vacate the BIA's decision, and remand for further proceedings.
In November 2003 Anim submitted an application for asylum and withholding of removal under 8 U.S.C. § 1158(a)(1) and § 1231(b)(3) and for relief under the Convention Against Torture (CAT), see 8 C.F.R. § 208.16(c). In support of her application Anim offered the following evidence, much of it through her own testimony, at the hearing before the IJ on January 30, 2004.
Anim is an Anglophone (English speaking) citizen of Cameroon. Cameroon is ruled by a Francophone (French speaking) regime, which reportedly discriminates against Anglophone citizens. In 2000, after experiencing employment discrimination at her government job because of her status as an Anglophone, Anim joined the Southern Cameroons National Council (SCNC). SCNC is a non-governmental organization established to represent Anglophones and advocate for secession of Anglophone provinces of Cameroon. Anim's relatives and friends were already SCNC members, and shortly after joining the organization, Anim was elected the publicity secretary of her local branch.
On August 27, 2002, Cameroon's largest opposition political party (the Social Democratic Front), which shares many supporters with SCNC, held a nonviolent demonstration. That evening Anim was stopped by two plainclothes police officers while she was walking to choir practice. When the officers asked Anim for identification, they noticed her SCNC membership card and said, "these are the type of people we are looking for." J.A. 214. The police then arrested her, kicking and pushing her into their van. Anim was detained for five hours and then released on the condition that she would cease any opposition to the ruling party.
On October 29, 2002, Anim attended an SCNC-sponsored independence celebration. After this event the government made mass arrests of SCNC members and supporters. In connection with this roundup, two plainclothes police officers entered the shop where Anim worked part time and arrested her. Anim was detained at a police station for five days. The morning after her arrest, the police beat the soles of her feet for two hours. The police then forced her to stand, interrogated her, and threatened to kill her and her family if she did not cease her involvement with SCNC. Anim was then forced to jump and sing songs praising the Cameroon government. This treatment was repeated over the course of her detention. On the fifth day Anim signed a document promising to end her involvement with SCNC; she was then released with a warning that she would be imprisoned if she resumed participation in SCNC activities.
Two months later, on December 20, 2002, Anim attended a demonstration held by the Human Rights Defense Group, another nongovernmental organization. That night, police officers entered Anim's house while she was sleeping and arrested her, her brother, and her sister. Anim was detained in prison for an indefinite term, and she was beaten each day. After two months, on February 22, 2003, Anim's uncle bribed a police brigade commander to help her escape. When Anim escaped, this police official told her uncle that she would only be safe if she left Cameroon. Anim spent the next ten days in hiding. Following the official's advice, Anim's uncle obtained a Cameroon passport for her, and then, together with the official, took her to the U.S. embassy, where she was issued a visa to enter the United States. On March 3, 2003, after being escorted to the airport by her uncle and the police official, Anim left Cameroon. Anim's sister was later served with three convocations, dated March 10, June 20, and August 11, 2003, ordering Anim to appear at the police station. Anim's sister was also informed that a warrant had been issued for Anim's arrest.
Anim presented several documents in support of her claims. These included her birth certificate, her Cameroon passport, pay stubs from her full-time job in Cameroon, her visa, her SCNC membership card, and copies of the three convocations, served on her sister, ordering Anim to appear at the police station. Anim also presented affidavits and letters from the following: her supervisor (Penn Jean Muluh) at the Cameroon Ministry of Public Health, describing her work, involvement with the SCNC, and imprisonment; her uncle, describing Anim's escape from prison and Cameroon; her parents and two brothers, describing her arrests; the vice chairman of SCNC, describing the group, Anim's involvement, and her detentions; her sister and her brother, mentioning her imprisonment; and her older sister, describing police delivery to her of the convocations and their efforts to execute the arrest warrant naming Anim. Anim's documentary evidence also included reports from the U.S. Department of State, Amnesty International, and the British Home Office, describing political repression and torture in Cameroon.
At her hearing Anim also introduced an affidavit and testimony from Victor T. Nchanji, who was Anim's professor at the School of Assistant Health Technicians in Limbe, Cameroon, from 1986 to 1988. Nchanji testified that he had heard about Anim's persecution. When questioned about the name of the person from whom he had learned this information, Nchanji first gave one name, but after Anim silently mouthed another name, Nchanji changed his testimony, giving another name.
At the end of the hearing the IJ expressed concerns about Anim's credibility, stemming largely from what the IJ characterized as Anim's "attempt to alter the testimony of a witness." J.A. 252. Nevertheless, the IJ suggested both a forensic evaluation and an overseas investigation into the authenticity of Anim's birth certificate, the convocations, the notarization of the affidavits from Cameroon, and the letter from Anim's supervisor at the Ministry of Public Health. To initiate the investigation, the IJ asked the Department of Homeland Security (DHS) counsel in Anim's case to refer the documents to the Department of State for overseas investigation and to the DHS forensic document laboratory for analysis.1 See 8 C.F.R. §§ 208.6(b), .11. The IJ explained his reason for suggesting an investigation as follows: J.A. 257. DHS counsel and Anim's counsel orally agreed to the investigation.
Thereafter, on July 20, 2004, DHS counsel received a report of investigation (in letter form) regarding Anim's case from Cynthia Bunton, Director of the Office of Country Reports and Asylum Affairs at the U.S. Department of State in Washington, D.C. (the Bunton letter). The Bunton letter reported the following:
The U.S. Embassy in Yaounde was queried with regard to the authenticity of documents presented and in connection with verification of the employment of Penn Jean Muluh [Anim's supervisor at the Ministry of Public Health] and Bong A. Divine [the notary].
The Foreign Service National (FSN) fraud investigator conducted the investigation. Neither the investigator nor the people interviewed were aware that the questions pertained to an asylum claim. The investigator is fluent in English, French and the local dialect.
The following information was ascertained: Mr. Nkembong Pius Tassay, Provincial Delegate of National Security for the North West Province, said the three convocations did not come from any police station in the northwest and were therefore forgeries.
J.A. 142. The Bunton letter further reported that an employee of the Delegation of Public Health had confirmed that a person named Penn Jean Muluh was employed by...
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