Eta-Ndu v. Gonzales

• Citation: 411 F.3d 977
• Decision Date: 23 June 2005
• Docket Number: No. 03-2287.,03-2287.
• Parties: Jacob ETA-NDU; Catherine Eta-Ndu; Danielle Eta-Ndu; and Gwladys Eta-Ndu, Petitioners, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)

Page 977

411 F.3d 977

Jacob ETA-NDU; Catherine Eta-Ndu; Danielle Eta-Ndu; and Gwladys Eta-Ndu, Petitioners, v. Alberto GONZALES, Attorney General of the United States of America, Respondent.

No. 03-2287.

United States Court of Appeals, Eighth Circuit.

Submitted: October 18, 2004.

Decided: June 23, 2005.

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J. Patrick McDavitt, argued, Minneapolis, Minnesota (John Troyer, Minneapolis, Minnesota, on the brief), for appellant.

James A. Hunolt, argued, Washington, D.C., for appellee.

Before COLLOTON, LAY, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Jacob Eta-Ndu, Catherine Eta-Ndu and two of their children¹ — Cameroon natives — challenge a final order of the Board of Immigration Appeals ("BIA") affirming a departure order issued by the immigration court. Jurisdiction is proper under 8 U.S.C. § 1105a(a) (1994), because the proceedings commenced before April 1, 1997, with the BIA decision issued after October 30, 1996. See Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), repealing 8 U.S.C. § 1105a (1994). The BIA is affirmed.

I. Facts

Jacob Eta-Ndu entered the United States with a non-immigrant student visa on September 8, 1991, to attend the University of Minnesota. His wife Catherine and children followed on a derivative visa. On August 1, 1995, deportation proceedings commenced with an Order to Show Cause. The Order alleged Jacob Eta-Ndu violated his non-immigrant status by failing to attend the University after September 1994, making the family deportable. The Eta-Ndus admitted the factual allegations, including deportability, but renewed a previous application for asylum or withholding of deportation.²

Etu-Ndu claims he, his father, and his uncle were members of the Socialist Democratic Front ("SDF"), an opposition party to the ruling party, the Cameroon Peoples' Democratic Movement. Eta-Ndu asserts that his family is a "social group" within the meaning of asylum laws, and he has a "political opinion" imputed from family associations. Thus, he argues his own political opinion and membership in a particular social group (an SDF-supportive family) subjected him to past persecution, and makes him a target for future persecution.

At the first formal deportation hearing, Eta-Ndu testified that between 1990 and 1991, while living in Cameroon, he participated in mobilizing people and other grassroots work for the SDF. During this time, his home was subjected to midnight searches by Cameroon authorities — allegedly looking for SDF documents — and he was detained for over three hours of questioning, after being shoved to the ground and kicked by Cameroon officials.

Eta-Ndu also testified that, in 1994, his uncle was murdered because of his SDF affiliation; shortly after the murder his father received death threats; his father's business mysteriously burned down; and, ultimately, his father and two brothers fled to Nigeria.

Catherine Eta-Ndu testified that the government ended her husband's student-salary, without explanation, and refused to reinstate it, after her request. She suspected it was due to her husband's SDF affiliation. She admitted that her mother and father, and a number of siblings — although not directly involved in any political matters — live peaceably in Cameroon. Both Jacob and Catherine also testified to having no trouble renewing their passports.

Dr. Milton Henry Krieger, an expert on Cameroon politics, also testified at the first deportation hearing. He described the SDF as the most effective opposition group in Cameroon, and noted shootings, arrests, and other adverse action by the government against SDF members. According to Dr. Krieger, SDF activists are well known throughout the county, and a murder of a known activist "would be exactly the sort of thing that the independent press, The Herald in particular reporting from Manfe would pick up...." Dr. Krieger further explained that the SDF is a recognized, established political party with "fairly substantial" membership records, which would be able to verify membership of Eta-Ndu, his father, and uncle. He did note, however, membership may not be available from some remote areas, although he could not speak for Mr. Eta-Ndu's home base, Mamfe.

Dr. Krieger noted that Mamfe is a particularly dangerous area for the SDF, although he admitted that a mere card-carrying SDF member is probably safe in Cameroon today. He further testified that while he has no personal knowledge, the uncle's death occurred in an area where such episodes infrequently come to light and could likely be due to SDF affiliation.

At the close of the testimony, the immigration judge ("IJ") requested confirmation from the SDF of Eta-Ndu's SDF-related activities, documentation of the uncle's death, and the burning of his father's business. In response, Eta-Ndu submitted two letters to the IJ, both typed, allegedly from SDF officials — one letter from Professor Tonyi Mbu-Agbor, of Mamfe, dated March 7, 1998; and a second letter from Dr. Ndi Christopher, of Bambili, dated March 4, 1998. Eta-Ndu also submitted letters from his father, brothers, and cousin (also a Cameroon magistrate) supporting his allegations; a police report about his uncle's murder; and a letter from the local Cameroon police officer who sent the report to Eta Ndu.

When the hearing reconvened, over two months later, the IJ admitted the letters and the police report into evidence. The letter from the father living in Nigeria first raised suspicion, because it was mailed from New York City, New York. The IJ also noticed that the letters from the SDF were typed on plain paper, without official letterhead — unlike letters confirming SDF membership for this IJ in other cases. The IJ further noted that the SDF letters were apparently typed on the same typewriter, mailed from the same place (Yaounde) on the same day. The IJ requested forensic analysis of the SDF letters, which concluded they came from the same typewriter.

Eta-Ndu offered several explanations. As to his father's letter, he testified that his father found a person in Nigeria who was traveling to the United States to mail the letter, because mail is so slow in Nigeria. Eta-Ndu submitted a letter from his father confirming this fact. As to the SDF letters, Eta-Ndu testified he had no knowledge of how the letters were prepared. Eta-Ndu did submit a letter from Dr. Christopher, explaining that he had no access to a typewriter in his office, requiring that all letters be typed by the secretary at the SDF's provincial office in Bamenda. Dr. Christopher speculated that the second letter from Professor Mbu-Agbor was sent to the same place for typing, since he also likely lacked access to a typewriter. Finally, Etu-Ndu explained that the same postmarks were likely due to the fact that residents in Bamenda and Mamfe often mail letters close to an international airport, like Yaounde, because mail is also slow in their hometowns. Dr. Krieger, in an affidavit, stated he had heard about haphazard mail service and inaccurate postmarking in Cameroon, but had "no personal experience to confirm this."

II. Agency Decisions

Reviewing the evidence, the IJ concluded that Eta-Ndu did not present sufficient proof of past persecution. As for future persecution, the IJ found implausible Eta-Ndu's explanations about the SDF letters. The IJ also expressed concerns with the evidence of the uncle's murder, in light of Dr. Krieger's testimony that it would be "exactly" the sort of thing the independent press would pick up. Although the IJ did not make a specific adverse credibility finding, he found Eta-Ndu's credibility "seriously shaken" and concluded that because Etu-Ndu did not present objective, corroborating evidence he failed his burden of proof.

On appeal, the BIA affirmed the IJ's ruling that Eta-Ndu's experiences in Cameroon do not rise to a level of past persecution. The BIA then affirmed the IJ as to future persecution, focusing on the two disputed letters:

The forensic analysis reveals that two letters were typed on the same typewriter, although allegedly sent by two different branches of the SDF located in different provinces of Cameroon. [Eta-Ndu] submitted a letter from the author of one of the letters stating that his office sends letters to a typing school to be typed. The Immigration Judge found that the explanation was unconvincing. We are not persuaded that the Immigration Judge's conclusion is unreasonable. [Eta-Ndu] did not supply a statement from the author of the other letter, or from anyone in the location where that letter originated, to confirm that the other branch also uses the same typing school. In addition, we note that [Eta-Ndu] has not supplied a statement from the typing school to confirm that the school receives correspondence from both branches, types the correspondence, and returns the documents to the branches for a signature.

The BIA also declined to review additional evidence submitted by Eta-Ndu after the IJ's decision.

III. Asylum and Withholding of Deportation

Eta-Ndu contends that the BIA erred as a matter of law in affirming the IJ's decision that Eta-Ndu failed to establish a "well-founded fear of persecution" on account of his political opinion or social group membership. "Because the BIA essentially adopted the IJ's opinion while adding some of its own reasoning, we review both decisions." Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004), citing Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004); Chand v. INS, 222 F.3d 1066, 1072 n. 7 (9th Cir.2000).

Both the IJ and the BIA denied asylum and withholding of deportation, finding Eta-Ndu did not meet his burden of proof. This denial must be upheld if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), quoting 8 U.S.C. § 1105a(a)(4) (1994). "[This] standard is a...