Ndonyi v. Mukasey

• Citation: 541 F.3d 702
• Decision Date: 02 September 2008
• Docket Number: No. 07-3196.,07-3196.
• Parties: Pauline NDONYI, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

541 F.3d 702

Pauline NDONYI, Petitioner, v. Michael B. MUKASEY, Attorney General of the United States, Respondent.

No. 07-3196.

United States Court of Appeals, Seventh Circuit.

Argued June 5, 2008.

Decided September 2, 2008.

Herbert A. Igbanugo, Dyan Williams (argued), Igbanugo Partners, Minneapolis, MN, for Petitioner.

Jem C. Sponzo (argued), Department of Justice, Civil Div., Immigration Litigation, Washington, DC, for Respondent.

Before POSNER, KANNE, and SYKES, Circuit Judges.

KANNE, Circuit Judge.

Pauline Ndonyi, a native and citizen of Cameroon, petitions for review of an order of removal entered by Immigration Judge Jennie L. Giambastiani (IJ), which became final when the Board of Immigration Appeals (BIA) dismissed Ndonyi's appeal. The IJ and the BIA both concluded that the harsh treatment Ndonyi suffered in Cameroon was not on account of her political, religious, or social affiliations, and denied her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Because the IJ and the BIA failed to properly analyze the nexus between the persecution faced by Ndonyi and her political and religious beliefs, we grant the petition for review and remand the case for further proceedings.

I. HISTORY

In May 2000, Pauline Ndonyi entered the United States at Detroit, Michigan, by crossing the border in a Canadian family's car. The agent at the border station checked only the driver's passport, and waived the car through the border; as a result, Ndonyi entered the United States undetected. In December 2000, Ndonyi, who was not yet in removal proceedings, filed an application for asylum, withholding of removal, and CAT protection, because she claimed to have suffered persecution as a result of her political activities and her father's leadership in the Cameroon Baptist Convention ("CBC"), a Baptist Christian organization. Ndonyi's application detailed that "[i]n January 1999, [she] was tortured and raped by the government police and military for expressing [her] political opinion." The application also stated that "in September 1999, [she] was forced to watch [her] father being tortured for his involvement with the Church," and that "[she] and [her] mother both were tortured for trying to come to his defense." Ndonyi's application claimed that, based on her past experience, she feared being "tortured and killed" if she returned to Cameroon. An asylum officer interviewed Ndonyi, see 8 C.F.R. § 1208.9, and after determining that she was inadmissible, the officer referred Ndonyi's application to the Executive Office of Immigration Review, see id. § 1208.14(c)(1). The government then initiated removal proceedings against Ndonyi in early February 2001 for being illegally present in the United States. See 8 U.S.C. § 1182(a)(6)(A)(i).

In September 2002, Ndonyi appeared with counsel at a hearing before the IJ. Ndonyi, a native English speaker, testified that she is a member of the Kom tribal group, an ethnic group located in the English-speaking northwest province of Cameroon. Ndonyi explained that French and English are the two official languages of Cameroon, but that French is the more prevalent language and English speakers, or "Anglophones," are often treated as second-class citizens.

Ndonyi stated that for two years, beginning in 1997, she attended the University of Yaoundé ("University"), which is located in a French-speaking part of the country. According to Ndonyi, the University discriminated against its Anglophone students by omitting their names from student lists; barring them from participation in sports and extracurricular activities; relegating them to dirty, substandard housing; and neglecting to grade their academic papers or record their course grades — which resulted in the students failing to receive proper credit for courses they completed and prevented their advancement to higher grade levels. In response to the University's discriminatory policies, English-speaking students formed the Northwest Students Association ("NSA"), an organization of a few hundred members that attempted to vindicate the interests of the school's Anglophone students by conducting peaceful demonstrations, boycotts of classes, and strikes targeted at school administrators. Although the NSA regularly posted fliers and engaged in protests during Ndonyi's two years at the University, the school administration did not permit the NSA to function in the school, so members met secretly, and their actions were met with resistance from school officials.

Ndonyi joined and actively participated in the NSA while at the University. Ndonyi testified that in mid-January 1999, she and other NSA members engaged in a peaceful "strike" in front of the University's administration building when school administrators called the police. The police arrived in trucks, and were armed with guns and clubs. Ndonyi explained that the police told the students that the students were disturbing the peace, and that the police were going to "teach them a lesson" for their disruptive behavior. The police beat the students with the clubs and pushed the students into the trucks.

Ndonyi recounted how the police then took the students to the police station, where they separated the male students from the female students. Ndonyi and the other female students were forced into a "nasty looking" cell. Police officers entered the cell, and kicked and beat Ndonyi and the other female students with clubs. During this incident, two officers held her down while other officers took turns raping her. The other girls in the room were also raped by the police. The students were held overnight and released the next morning without being charged with any offense. Ndonyi testified that upon her release from the prison, she went to the hospital to obtain treatment for her injuries, but did not report the episode to other authorities. A close friend of Ndonyi's, Rosalyina Disango, died as a result of the incident. Ndonyi became angry when Rosalyina's death was misreported as a suicide, and as a result, Ndonyi attempted to contact members of the press to have the true story of her friend's death published. The government discovered Ndonyi's efforts to contact the press and summoned her to the police station in late January 1999. Ndonyi did not report to the station and instead fled 420 miles to her home province.

Ndonyi explained that upon arriving in the northwest province, she did not go directly to her parents' home in Mabingo, but instead stopped in another town 30 miles away because "the situation at home ... was also bad." Since 1994, there had been hostility toward her family in her home province because her father was the chairman of the CBC. Ndonyi's father and her family faced backlash after her father refused to "break away" from the church and join a splinter group — the Cameroon National Baptist Christian Convention ("CNBC"), which objected to how the CBC spent church funds. The CBC and CNBC members attended the same church, which led to social hostilities directed at CBC members — including name-calling, shunning, and stone throwing. Ndonyi's father's attempt to inform the authorities about the oppressive actions of CNBC members fell on deaf ears because the authorities were affiliated with the CNBC.

After a few weeks in the nearby village, Ndonyi returned to her parents' home. Ndonyi's initial hesitation to returning home proved warranted — from February until September 1999, her family was under de facto house arrest: "[W]e couldn't go out ... we were being stoned, called names. They wouldn't ... even interact with us. So basically we just stay[ed] home." Ndonyi also detailed that CNBC members left letters tacked to her family's front gate threatening to burn down their home because of her father's continued allegiance to the CBC.

The efforts by Ndonyi's father to publicize the family's plight exacerbated the situation. In early September 1999, Ndonyi's father was arrested for writing a letter to government officials in the Cameroonian Senate, discussing how the local government supported the CNBC instead of neutrally resolving the dispute between the two Baptist sects. The letter brought no response; Ndonyi speculated that the politicians were silenced because the political landscape was dominated by French speakers, who advanced their own agendas and causes. The local officials branded Ndonyi's father a "traitor" and a trouble-maker, and arrested him for going over their heads to the higher authorities.

Two weeks later, the entire Ndonyi family, along with other CBC members, was arrested and "locked up" by uniformed police. The family was taken to a maximum security prison in Bamenda, where local officials attempted to get Ndonyi's father and other CBC members to sign documents that stated they would "stop" opposing the CNBC. Several CBC members signed the forms and were released, but Ndonyi's father refused to sign, and the family was detained for two weeks. During the two-week imprisonment, the police tortured Ndonyi's father in front of the entire family — four officers took him out of his cell, hung him from handcuffs placed around metal bars on a wall, and then beat his legs and body with clubs. The officers told the family that this should be a "lesson" to them. When her father began to pass out, Ndonyi could no longer stand idly by — she jumped on top of one of her father's assailants and was bludgeoned in the head with the butt of a rifle.

When Ndonyi awoke, she was being treated by one of her father's supporters, and was informed that her family had been released. Ndonyi's family had returned to their home in Mabingo, where CNBC members continued to intimidate and socially censure them and the other CBC members. Ndonyi explained that her family returned to Mabingo because it was unlikely that the English-speaking family could find work or get an education in the French-speaking parts of...