Edimo-Doualla v. Gonzales

• Decision Date: 19 September 2006
• Docket Number: Docket No. 04-3638-AG.
• Citation: 464 F.3d 276
• Parties: Yves Gautier EDIMO-DOUALLA, Petitioner, v. Alberto R. GONZALES,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Second Circuit

464 F.3d 276

Yves Gautier EDIMO-DOUALLA, Petitioner, v. Alberto R. GONZALES,¹ Respondent.

Docket No. 04-3638-AG.

United States Court of Appeals, Second Circuit.

Submitted: June 8, 2006.

Decided: September 19, 2006.

Mark T. Kenmore, Buffalo, NY, for Petitioner.

Gregory R. Miller, United States Attorney for the Northern District of Florida; E. Bryan Wilson, Assistant United States Attorney, Tallahassee, FL, for Respondent.

Before: STRAUB, SOTOMAYOR, and HALL, Circuit Judges.

SOTOMAYOR, Circuit Judge:

Yves Gautier Edimo-Doualla petitions for review of an order of the Board of Immigration Appeals ("BIA") affirming the decision of Immigration Judge ("IJ") Michael Rocco that denied his application for asylum and withholding of removal under the Immigration and Nationality Act ("INA"), 8 U.S.C. §§ 1158 and 1231, respectively, and for relief pursuant to the Convention Against Torture ("CAT")² and its implementing regulations, 8 C.F.R. § 208.16. In re Yves Gautier Edimo-Doualla, No. A 78 383 640 (B.I.A. Jun. 1, 2004), aff'g No. 78 383 640 (Immig. Ct. Buffalo Nov. 25, 2002). We vacate and remand because the IJ erred in a number of respects, including failing to take account of testimony showing that the harm Edimo-Doualla suffered was on account of political opinion; misapplying BIA and Second Circuit precedent regarding the meaning of the statutory term "persecution"; requiring physical evidence of the abuse Edimo-Doualla claimed to have suffered without explaining why he believed such evidence was reasonably available; and discounting portions of Edimo-Doualla's testimony because of Edimo-Doualla's use of false identification documents without explaining what weight he assigned to this factor and without distinguishing between the use of false documents to flee persecution and to attempt to enter the United States illegally.

BACKGROUND

Edimo-Doualla is a native and citizen of Cameroon. In 2000, he attempted to enter the United States illegally, through Canada, but was apprehended and detained at the border. He filed an application for asylum, withholding of removal and relief under the CAT, in which he stated that he feared returning to Cameroon because he had been persecuted there on account of his political opinion. He claimed to have suffered persecution because of his involvement with the Social Democratic Front of Cameroon ("SDF"), a leading political opposition party. At his hearing, Edimo-Doualla testified to having been detained and beaten by Cameroonian authorities on multiple occasions. Specifically, he described the following incidents in his testimony.

In January 1991, Edimo-Doualla was arrested and detained for one day because of his participation in a demonstration against the government's arrest of a prominent Cameroonian writer. In November 1991, he was arrested for protesting against a government-imposed curfew and was beaten repeatedly with a cane on the soles of his feet. In 1996, he was again arrested, this time during a student demonstration, and was held for two days.

In 1997, Edimo-Doualla was arrested at gunpoint by the Cameroonian secret police and detained for between three and five days after they caught him distributing political flyers. The police told him that he had been arrested because he was "in violation of the security of the state." Edimo-Doualla was taken to the police station, where the police handcuffed him, chained his legs and beat him on the soles of his feet with the flat side of a machete for about four hours. Every half hour or so, the police stopped beating him and made him jump on gravel in the yard outside the police station while singing songs in praise of Paul Biya, the president of Cameroon. He was beaten multiple times during his detention and deprived of food and water.

After his release, Edimo-Doualla borrowed a cousin's French passport and fled to Canada. Once in Canada, he went directly from the airport to an immigration office, where he applied for refugee status using his real name. While he was in Canada, his brother was detained for several weeks by Cameroonian authorities. Shortly after his release, Edimo-Doualla's brother died after developing abdominal pains.³ Edimo-Doualla's application for refugee status was eventually denied, and he was ordered to leave Canada. He left on January 15, 2000, and returned to Cameroon, where he attended his brother's funeral.

When Edimo-Doualla arrived at the airport in Cameroon, he was asked by a police officer what he had been doing in Canada. He admitted that he had applied for refugee status there. The police officer accused him of "dirty[ing] our name, giv[ing Cameroon] a bad reputation," and took him to a room where he was held for about forty-five minutes and forced to sign a document that he was not allowed to read and that he later learned was a warrant for his own arrest. A police officer told him not to continue his political activities. The police confiscated his passport, but did not detain him further at that time.

In the weeks following his return to Cameroon, the police came to his home at least twice looking for him and left him summons forms ordering him to appear at the police station. They also broke down the door to his room and took books, papers and magazines addressing political subjects. At this point, Edimo-Doualla effectively went into hiding, staying away from his home. In April 2000, however, he attended a political meeting, and when he left, he and another political activist, Samuel Etouke, were arrested.

The police took Edimo-Doualla and Etouke to the police station. The station compound had a high bar suspended on two pillars. The officers made Etouke, who at this point was naked, climb onto a bench so that his arms were level with the bar. They then cuffed his arms to the bar and removed the bench so that he was suspended in mid-air by his arms. While he was in this position, the officers beat him on the back and buttocks with a wire and rubber instrument for ten to fifteen minutes. The officers then turned to Edimo-Doualla, who also was naked, and did the same. For about two hours, they took turns beating Edimo-Doualla and Etouke in this position. Afterwards, the officers locked them in a cell, in only their underwear, with no food or water. The police kept Edimo-Doualla and Etouke in this cell for five or six days and beat them each day in the same manner. Edimo-Doualla was taken to the police commissioner, who said that he had recommended that the officers continue to beat Edimo-Doualla and that Edimo-Doualla "was going to spend a few years in jail."

After five or six days, the police transferred Edimo-Doualla to the New Bell central prison. Etouke was sent to a hospital with a broken arm and untreated diabetes, and he died there. On Edimo-Doualla's first day at New Bell, he was given a bucket of water mixed with urine and told to shower with it. Otherwise, Edimo-Doualla was not mistreated during his three months in prison. He was released after his mother bribed a prison guard.

Once released, he traveled to Nigeria, and then to Canada, using another person's French passport. (After arriving in Canada, he sent the French passport back to "the person who helped me with it.") He then stole and used a Canadian identification card to attempt to enter the United States, where he planned to apply for asylum, but American border officials recognized his documents as fraudulent and detained him. Edimo-Doualla testified that he used the stolen documents, rather than simply asking for asylum at the border, because he was unaware of how the asylum process worked in the United States. In August 2000, he pled guilty to a charge of "attempt[ing] to enter . . . the United States by a willfully false or misleading representation or the willful concealment of a material fact." 8 U.S.C. § 1325(a)(3).

While in detention, Edimo-Doualla applied for asylum, withholding of removal and CAT relief, claiming that he had suffered persecution on account of political opinion. In support of his application, Edimo-Doualla submitted proof of his identity and nationality, SDF membership cards dating back to 1992, the police summons forms issued before his most recent arrest and letters from his wife and mother corroborating his story. On November 25, 2002, after a removal hearing, the IJ denied Edimo-Doualla's application because he concluded that the evidence Edimo-Doualla had submitted was insufficient "to compel a finding" that he had been persecuted on account of his political opinion.⁴

The IJ offered a number of reasons for this conclusion. As to the two 1991 arrests and the 1996 arrest, the IJ found that (1) there was no evidence that the arrests were "motivated by a desire to punish the Respondent on account of political beliefs," and (2) Edimo-Doualla had "offered no evidence of permanent or serious injury amounting to persecution." Regarding the 1997 arrest and beating, the IJ found that (1) there was no evidence that the Cameroonian authorities were aware of Edimo-Doualla's political views when they arrested him or that they questioned him about his views during his detention, and (2) Edimo-Doualla had failed to "proffer . . . physical evidence of abuse consistent with the alleged mistreatment or other evidence of medical treatment for alleged injuries." Moreover, the IJ noted the following "other facts" that "undercut" Edimo-Doualla's claim: (1) Cameroonian authorities had not searched for Edimo-Doualla while he was in Canada; (2) Edimo-Doualla's mother and sister had not been threatened or harmed because of him; and (3) his testimony regarding his brother's death did not compel the conclusion that "his brother was killed as claimed or that any political opinions held by him were attributed to" Edimo-Doualla. Finally, as to the April 2000 incident, the IJ concluded that Edimo-Doualla had not established political persecution because his credibility was undermined by (1) the fact that...