Esaka v. Ashcroft, 04-1155.

• Citation: 397 F.3d 1105
• Decision Date: 16 February 2005
• Docket Number: No. 04-1155.,04-1155.
• Parties: Patience Njowe ESAKA, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

397 F.3d 1105

Patience Njowe ESAKA, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 04-1155.

United States Court of Appeals, Eighth Circuit.

Submitted: November 17, 2004.

Filed: February 16, 2005.

COPYRIGHT MATERIAL OMITTED

Elizabeth A. Holmes, argued, Bloomington, MN, for petitioner.

Ryan Wesley Bounds, argued, Washington, DC (Madeline Henley, DOJ, Washington, DC, on the brief), for respondent.

Before SMITH, BEAM, and BENTON, Circuit Judges.

SMITH, Circuit Judge.

Patience Njowe Esaka seeks review of an order by the Board of Immigration Appeals (BIA) affirming an Immigration Judge's (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture. We deny the petition for review.

I. Background

Patience Njowe Esaka was born on October 1, 1969, in Muyuka Cameroon. In Cameroon, people fall within one of two linguistic populations: English speaking persons referred to as Anglophones, and French speaking persons referred to as Francophones. Esaka and her family are Anglophones. Esaka began high school in 1986 at a government run school in Limbe, Cameroon. She claimed that while in high school she, along with other students, opposed the rule of Cameroon President Paul Biya. Esaka's opposition included protesting President Biya's alleged discrimination against, and persecution of, Anglophone students. Esaka claimed to have attended her first anti-government demonstration during her first year of high school where she and other demonstrators protested government tuition increases. The government responded by arresting several students and using police to disperse the crowd. Esaka avoided arrest.

Then in February 1987, Esaka protested against the government while preparing for a Youth Day celebration. Students gathered at school in the early morning to sing the Cameroon National Anthem. On one occasion, Esaka, along with other students, sang the Nigerian National Anthem in defiance of President Biya's government. School administrators punished the defiant students by assigning them to cut grass instead of attending class the following day. Instead of cutting grass, however, Esaka and other protestors initiated a demonstration that required police intervention.

According to Esaka, several students were trampled to death in the ensuing chaos. She claimed that she was arrested for disturbing the peace and taken, along with other students, to a detention camp outside of Limbe. While in detention, Esaka claimed that she was forced to sleep on the floor and given no food or water during her first day. In addition, she claimed that she was beaten with a bamboo cane and a belt, and kicked several times. On the third day, Esaka and a group of her friends escaped by tying together their shirts and bras and using them to scale the detention wall. During her escape, Esaka cut her leg on the barbed wire that topped the detention wall. Esaka asserted she then walked fifty miles back to her home in Limbe.

Although Esaka stated she feared for her life, she nonetheless returned to school the following day after receiving a statement from President Biya's government indicating that those who did not return would suffer further sanctions. When she returned to school, Esaka noticed that several of her classmates were curiously absent. Esaka heard reports that some students were forcibly removed from their homes by the Cameroon military. Due to the instability in the country, Esaka fled Cameroon with her brother to pursue her studies in the United States.

In 1987, Esaka was granted entry into the United States as a nonimmigrant student and soon joined the Cameroon Student Association (CAMSA). As a member of CAMSA, Esaka claimed to have participated in various anti-government demonstrations in the United States and asserted that President Biya's government had declared CAMSA a subversive group. Furthermore, Esaka asserted that President Biya issued warrants for the arrest of all CAMSA members and arrested, imprisoned, tortured, and/or killed many students upon their return to Cameroon.

While in the United States, Esaka also joined the Social Democratic Front (SDF) and participated in its meetings and paid dues until 1995. According to Esaka, her parents' government benefits were cut and their pay withheld in 1988 as the economic situation in Cameroon worsened. Esaka claimed that she discontinued her studies and sought employment without the permission of the United States Government because she could no longer afford to pay tuition.

In addition to her claimed personal persecution, Esaka asserted that members of her family suffered political persecution in her absence. Specifically, she alleged that President Biya's government summarily shot and killed two of her cousins during a protest in 1991. Esaka's mother produced death certificates of Esaka's deceased cousins from Cameroon. However, in response, the government produced evidence showing the certificates to be fakes. According to Esaka, one of her uncles, a leader in the SDF, was frequently arrested, had his businesses burned down by the government, suffered beatings to the soles of his feet, and eventually went into hiding. Another uncle, an active member of the SDF, was similarly arrested, beaten, and tortured before he also went into hiding. In 1998, Esaka's father returned to Cameroon. Esaka's mother returned to Cameroon some time later.

On January 22, 1991, proceedings for deportation against Esaka commenced. An order to show cause was filed, charging Esaka with deportability for failing to maintain her student status and obtaining employment in the United States without permission. Esaka failed to appear at her hearing and was ordered deported in absentia. On February 18, 1992, Esaka filed an administrative asylum application with the Immigration and Naturalization Service and appeared for an asylum hearing on April 24, 1996. At the hearing, Esaka was arrested under the prior order of deportation. However, her deportation was stayed and the case reopened.

At a master calendar hearing on July 29, 1997, Esaka, represented by counsel, conceded her deportability. Nonetheless, Esaka sought asylum, withholding of removal, suspension of deportation, and voluntary departure. An IJ conducted a hearing wherein Esaka submitted evidence. The IJ denied Esaka asylum, withholding, and suspension, but granted her voluntary departure. Esaka appealed the decision to the BIA, which summarily denied her relief and ordered deportation or voluntary departure. Esaka then filed the instant action as a petition for review.

II. Discussion

The BIA adopted the IJ's adverse credibility finding and ruled that Esaka failed to meet her burden of proof. When the BIA summarily adopts an IJ's decision without adding further reasoning, we limit our review to the decision produced by the IJ. See Hassanein v. Ashcroft, 380 F.3d 324, 327-28 (8th Cir.2004).

A. Adverse Credibility Finding

The thrust of Esaka's argument is that the IJ improperly determined her credibility. We defer to an IJ's negative credibility finding where it is "supported by a specific, cogent reason for disbelief." Hassanein, 380 F.3d at 327-28. "[B]ecause the [IJ] is in the best position to evaluate an alien's testimony, his or her credibility determinations are to be given much weight." See Perinpanathan v. I.N.S., 310 F.3d 594, 597 (8th Cir.2002) (citing Estrada v. I.N.S., 775 F.2d 1018, 1021 (9th Cir.1985)).

The IJ first noted that Esaka resorted to misrepresentation when she considered it to be in her interest to do so. Specifically, she misrepresented her immigration status to employers in order to gain unauthorized employment. The IJ then examined Esaka's historical account of her persecution in Cameroon. The IJ noted discrepancies between Esaka's hearing testimony and her written application for asylum. In her application for asylum, she failed to mention that she had been beaten while detained. In Esaka's later testimony, however, she claimed to have been beaten with a bamboo cane and a belt, and kicked several times. Esaka explained that the discrepancy arose out of the translation of her handwritten statement into a typed statement. The IJ found the explanation "shaky" remarking that she signed the type-written document and was educated in the English language. The IJ then turned to Esaka's explanation of her detention and escape after a purported arrest for protesting President Biya's government. The IJ disbelieved Esaka's claim that she escaped from a guarded detention facility by climbing over barbed wire with ropes made from T-shirts and bras. The IJ was particularly critical of Esaka's claim that her escape was not hampered by the guards. The IJ added that Esaka's stories changed and that she gave different descriptions of the wall she escaped over.

The IJ found "most damaging" Esaka's submission of fake death certificates for her cousins.¹ After receiving the death certificates of Esaka's two cousins, the government sought to authenticate the documents by having the United States Embassy in Yaounde conduct an investigation. That investigation revealed that the death certificates were not authentic. In addition, the court noted that the death certificates were obtained by Esaka's mother who was formerly employed at the hospital purportedly issuing the certificates. The IJ noted inconsistencies in Esaka's mother's account of how she received the death certificates that further cast doubt on their authenticity.

An immigration judge can base a credibility determination on the lack of corroborating evidence if the judge also encounters inconsistencies in testimony, contradictory evidence, or inherently improbable testimony. Zewdie v. Ashcroft, 381 F.3d 804, 808 (8th Cir.2004). In this case, Esaka's evidence suffered from inconsistencies. For example, her testimony about the circumstances of her departure were...