Etchu-Njang v. Gonzales

• Decision Date: 08 April 2005
• Docket Number: No. 04-1054.,04-1054.
• Citation: 403 F.3d 577
• Parties: Mathias Njang ETCHU-NJANG, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America,<SMALL><SUP>1</SUP></SMALL> Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 577

403 F.3d 577

Mathias Njang ETCHU-NJANG, Petitioner, v. Alberto GONZALES, Attorney General of the United States of America,¹ Respondent.

No. 04-1054.

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2004.

Filed: April 8, 2005.

Riddhi Jani, argued, Minneapolis, MN (Herbert A. Igbanugo, Minneapolis, MN, on the brief), for petitioner.

Margot L. Nadel, argued, Justice Dept., Washington, D.C., for respondent.

Before WOLLMAN, MAGILL, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Mathias Njang Etchu-Njang petitions for review of an order of the Board of Immigration Appeals ("BIA") denying his claims for asylum, cancellation of removal, and withholding of removal. We deny the petition for review.

I.

Etchu-Njang is a native and citizen of Cameroon who last entered the United States on September 27, 1989. When he entered the country in 1989, he had obtained a valid student visa which authorized him to remain in the United States while he studied at Metropolitan State University in Minneapolis, Minnesota. In 1993, while still a student, he applied for asylum, but his application was not granted. In 1998, the Immigration and Naturalization Service² charged Etchu-Njang with removability for failure to comply with the conditions of his nonimmigrant status, alleging that he had been working since 1987 without authorization and that he had ceased his studies at the university in 1997. Etchu-Njang conceded removability but requested cancellation of removal pursuant to 8 U.S.C. § 1229b(b) and withholding of removal pursuant to 8 U.S.C. § 1231(b)(3)(A), and also renewed his application for asylum, filed under 8 U.S.C. § 1158(a).

At a hearing before an immigration judge ("IJ"), Etchu-Njang testified that since arriving in Minnesota, he had joined a political party known as the "SDF," which opposed the ruling party in Cameroon. Although he had never held an office or participated in any demonstrations with the organization, he testified that he feared a return to Cameroon because his father and one of his brothers had also belonged to the SDF and were missing or dead "as a result of [their] party affiliation and activities." (A.R. at 238, 240, 270). In support of his application for cancellation of removal, Etchu-Njang also testified that his daughter, a United States citizen, would suffer extreme hardship if his application were denied because she could be subjected to female genital mutilation, and because her anemic condition required her to take iron supplements.

On January 8, 1999, the IJ denied Etchu-Njang's applications for asylum, withholding of removal, and cancellation of removal, but granted the maximum period for voluntary departure. The IJ first registered "some very serious concerns about the overall credibility of the respondent's case." (A.R. at 180). The IJ then found that Etchu-Njang had failed to establish a well-founded fear of future persecution because he had been only minimally involved in activities opposing the government of Cameroon, and because there was insufficient objective evidence showing that his brother and father were involved with the SDF in Cameroon and were subjected to persecution on account of their membership. (A.R. at 183-85). Regarding the application for cancellation of removal, the IJ accepted that Etchu-Njang met the statutory requirements for good moral character and continuous physical presence in the country, but found that he had failed to establish "exceptional and extremely unusual hardship" to his daughter. Although he had considered the evidence relating to female genital mutilation, the IJ determined that the record did not support the conclusion that Etchu-Njang's daughter would actually be subjected to that practice.

Etchu-Njang appealed his case to the BIA, arguing that the IJ erred in denying cancellation of removal and asylum. In December 2002, the BIA declined to affirm summarily the IJ's adverse credibility determination, but affirmed without opinion the IJ's ultimate decision denying the applications for relief. In September 2003, the Department of Homeland Security moved the BIA to reissue its decision with a new decision date and to re-serve the decision to Etchu-Njang's address, after discovering that Etchu-Njang's first attorney had forged the name of another attorney on pleadings filed with the BIA. Etchu-Njang then represented by a second attorney, also moved the BIA to re-date and reissue its decision, citing the first attorney's misconduct and the fact that he had been sanctioned by the Minnesota Supreme Court. The Board reissued its decision on December 10, 2003.

Etchu-Njang then filed a timely petition for review. In April 2004, the DHS removed Etchu-Njang to his native country. Now represented by a third attorney, he raises for the first time an argument that he was deprived of liberty without due process of law in violation of the Fifth Amendment, because his first counsel was ineffective in developing his claim for cancellation of removal. He also argues that the BIA erred in denying his application for asylum.

II.

We consider first Etchu-Njang's claim that the BIA erred in denying him asylum as a "refugee." Under the Immigration and Nationality Act ("INA"), the Attorney General has discretion to grant asylum to a "refugee," that is, an alien who is unable or unwilling to return to his home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see 8 U.S.C. § 1158(b)(1). A "well-founded fear" is one that is both subjectively genuine and objectively reasonable. Cigaran v. Heston, 159 F.3d 355, 357 (8th Cir.1998); see INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Congress provided that the Attorney General's discretionary judgment whether to grant relief under the asylum provisions "shall be conclusive unless manifestly contrary to the law and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D). The BIA's findings of fact are conclusive "unless any reasonable adjudicator would be compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

We are not persuaded that the evidence presented by Etchu-Njang would compel any reasonable adjudicator to conclude that he had a well-founded fear of persecution if returned to Cameroon. Etchu-Njang testified that he feared future persecution because of his membership in the SDF, a party that opposes the current government. He acknowledged, however, that he had not even been a member of the SDF while he was living in Cameroon, and that once he joined the party in Minnesota, his membership was limited to paying dues and attending meetings. We do not believe it was unreasonable for the BIA to conclude that this limited activity was insufficient to create a well-founded fear of persecution.

Etchu-Njang also testified that he feared persecution based on the political activities of his brother and father, whom he claimed had been persecuted by the government of Cameroon. According to Etchu-Njang, his father disappeared as a result of his political activity, and his brother was beaten in prison and later killed. As the IJ noted, however, there was no proof presented from the SDF itself that the brother and father were even involved in the organization. The only evidence submitted on this point was Etchu-Njang's own testimony, and his testimony was undermined by the fact that an INS investigation found no record of the father's membership in the SDF in Cameroon. Etchu-Njang presented a death certificate for his brother and claimed that his brother was beaten to death by government officials, but the certificate indicated that the brother died from injuries in a "road accident." The only evidence in support of Etchu-Njang's claim that his brother was beaten was his own belief, based on reports from his other brother. We do not think this evidence was so strong that any reasonable factfinder would be compelled to conclude that the brother and father were persecuted on account of their membership in the SDF, and that Etchu-Njang himself was therefore threatened with similar persecution. We thus cannot say that the IJ's decision was manifestly contrary to law and an abuse of discretion. See 8 U.S.C. § 1252(b)(4)(D).

III.

Etchu-Njang also contends that he was deprived of liberty without due process of law in violation of the Fifth Amendment, because his counsel performed deficiently in developing what Etchu-Njang believes was a meritorious claim for cancellation of removal. The INA precludes judicial review of the Attorney General's judgment denying requests for cancellation of removal, 8 U.S.C. § 1252(a)(2)(B)(i), Halabi v. Ashcroft, 316 F.3d 807, 808 (2003) (per curiam), but Etchu-Njang contends that we have jurisdiction to review a constitutional claim based on his alleged ineffective assistance of counsel. See Halabi, 316 F.3d at 808 (considering alleged constitutional due process claim); Onyinkwa v. Ashcroft, 376 F.3d 797, 799 n. 1 (8th Cir.2004) (citing cases from other circuits).

"Our court has yet to recognize the validity of a due-process claim in a deportation proceeding based on the ineffective assistance of counsel." Nativi-Gomez v. Ashcroft, 344 F.3d 805, 808 n. 1 (8th Cir.2003). The government argues that an alien has no constitutional right to effective assistance of counsel in removal proceedings, but seems to assume in light of Halabi that if there were a "substantial constitutional challenge" that was properly presented, then we would have jurisdiction to review it. Cf. Calcano-Martinez, 533 U.S. 348, 350 n. 2, 121 S.Ct. 2268, 150 L.Ed.2d 392 (2001); Lukowski v. INS, 279 F.3d 644, 646-47 (8th Cir.2002). The government also contends, however, that whatever the merits of the due...