Ngengwe v. Mukasey

• Citation: 543 F.3d 1029
• Decision Date: 18 September 2008
• Docket Number: No. 07-3702.,07-3702.
• Parties: Elizabeth Simeni NGENGWE, Appellee, v. Michael B. MUKASEY, Attorney General of the United States, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

543 F.3d 1029

Elizabeth Simeni NGENGWE, Appellee, v. Michael B. MUKASEY, Attorney General of the United States, Appellant.

No. 07-3702.

United States Court of Appeals, Eighth Circuit.

Submitted: June 12, 2008.

Filed: September 18, 2008.

Danielle LC Beach-Oswald, argued, Washington, DC, for petitioner.

Kelly J. Walls, argued, U.S. Department of Justice, Washington, DC (Janice K. Redfern, on the brief), for respondent.

Before MELLOY, ARNOLD, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Elizabeth Simeni Ngengwe petitions for review of an order of the Board of Immigration Appeals, denying her application for asylum, withholding of removal, and protection under the Convention Against Torture. Having jurisdiction under 8 U.S.C § 1252, this court grants the petition and remands to the BIA for further proceedings.

I.

Ngengwe's testimony, found credible by the IJ, is the basis of the facts recited here. See Sholla v. Gonzales, 492 F.3d 946, 948 (8th Cir.2007). Ngengwe, an adult female, is a citizen of the Republic of Cameroon, and a member of the Anglophone¹ Bamileke tribe in the Southwest province. She married a member of the Francophone Bikom tribe in the Northwest province. The couple lived in the Southwest province, and had two sons. Ngengwe's husband died in a car accident in 2000. After the funeral, as a part of traditional mourning rituals, Ngengwe's in-laws detained her in their home in the Northwest province for two months, shaved her head with a broken bottle, forbade her from dressing, kept her children from her, and forced her to sleep on the ground. She initially complied with these rituals for fear that her in-laws would take her children. Ngengwe's in-laws also confiscated all of her and her deceased husband's belongings, and closed their bank account.

Ngengwe eventually escaped with her two children, fleeing to her sister's house in the Southwest province. About a month later, her in-laws showed up there, demanding that Ngengwe marry her late husband's brother, or pay the bride's price.² Ngengwe did not wish to marry her brother-in-law because he was older, with two other wives. When she told her in-laws that she would not marry him and could not pay the bride's price, the in-laws knocked her down and beat her. The in-laws told Ngengwe that they would return in a month, and that if she did not marry her brother-in-law or pay the bride's price, they would kill her and take her children. Neighbors took Ngengwe to the hospital, but she did not report the incident to the police because she believed they would not do anything about a "family matter."

Ngengwe left her sister's, not telling her sister of her plans for fear that her in-laws would force her sister to reveal her whereabouts. For eight months, Ngengwe and her children stayed with a friend in a town about an hour away from her sister. Then, Ngengwe (alone) left the country and initially entered Canada on a friend's passport, but later came to the United States to be with her brother who lived in Kansas City.

Ngengwe applied for asylum in October 2001. The IJ denied her application concluding that she was not a member of a particular social group, did not suffer past persecution, was not persecuted "on account of" being a member of a particular social group, did not have a well-founded fear of future persecution, and that the government was not complicit in persecuting her. The IJ also denied Ngengwe's requests for withholding of removal and protection under the Convention Against Torture because she had not met the lower standard of proof for asylum. Ngengwe appealed the IJ's decision to the BIA, which dismissed her appeal for essentially the same reasons as the IJ stated.

II.

"Only the BIA order is subject to our review, including the IJ's findings and reasoning to the extent they were expressly adopted by the BIA." Osonowo v. Mukasey, 521 F.3d 922, 926-27 (8th Cir.2008), quoting Fofanah v. Gonzales, 447 F.3d 1037, 1040 (8th Cir.2006). "When the BIA adopts the IJ's decision, but adds reasoning of its own, we review both decisions." Setiadi v. Gonzales, 437 F.3d 710, 713 (8th Cir.2006). Questions of law are reviewed de novo, "according substantial deference to the BIA's interpretation of the statutes and regulations it administers." Bushira v. Gonzales, 442 F.3d 626, 630 (8th Cir. 2006). "A denial of asylum is reviewed for abuse of discretion; underlying factual findings are reviewed for substantial support in the record." Davila-Mejia v. Mukasey, 531 F.3d 624, 627 (8th Cir.2008), quoting Hassan v. Gonzales, 484 F.3d 513, 516 (8th Cir.2007).

The Attorney General has discretion to grant asylum to any individual who is a "refugee." 8 U.S.C. § 1158(b)(1)(A). A refugee is an alien "who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [the country of removal] 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). A well-founded fear of persecution must be both subjectively genuine and objectively reasonable. El-Sheikh v. Ashcroft, 388 F.3d 643, 646 (8th Cir.2004). "Persecution may be `a harm to be inflicted either by the government of a country or by persons or an organization that the government was unable or unwilling to control.'" Nabulwala v. Gonzales, 481 F.3d 1115, 1118 (8th Cir. 2007), quoting Suprun v. Gonzales, 442 F.3d 1078, 1080 (8th Cir.2006).

If an alien establishes membership in a particular social group and past persecution "on account of" membership in it, the burden shifts to the government to rebut the presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(1)(ii). The government can rebut this presumption by showing, by a preponderance of the evidence, a "fundamental change in circumstances" in the country so that the applicant no longer has a well-founded fear of persecution, or that "the applicant could avoid future persecution by relocating to another part of the country" and it would be reasonable to do so.8 C.F.R. § 208.13(b)(1)(i)(A), (B), (b)(3)(ii). If an alien fails to meet the asylum requirement of a well-founded fear of persecution, he or she generally cannot meet the higher standard needed to obtain withholding of removal or protection under the Convention Against Torture. Al Yatim v. Mukasey, 531 F.3d 584, 590 (8th Cir.2008).

A.

Ngengwe sought asylum alleging a well-founded fear of persecution based on "membership in a particular social group." She defined the social group as any "widowed Cameroonian female member of the Bamileke tribe, in the Southern region that belongs to a family or has in-laws from a different tribe and region, the Bikom tribe in the Northwest province, who have falsely accused her of causing her husband's death." She also argued that she belongs to the broader social group of Cameroonian widows. The BIA, agreeing with the IJ, found that neither definition constituted a particular social group. This is a question of law reviewed de novo. Gomez-Zuluaga v. Attorney General of the U.S., 527 F.3d 330, 339 (3d Cir.2008).

"Particular social group" is an ambiguous phrase, not defined in the statute. This court gives Chevron deference to the BIA's reasonable interpretation of the phrase. See Chevron, U.S.A., Inc. v. Natural Res. Def. Council Inc., 467 U.S. 837, 842-45, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); Ahmed v. Ashcroft, 396 F.3d 1011, 1014 (8th Cir.2005). The BIA defined the phrase in Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The BIA used the doctrine of ejusdem generis (general words used with specific words should be construed consistent with the specific words), comparing the term particular social group to the other enumerated grounds: race; religion; nationality; and political opinion. Acosta, 19 I. & N. at 233. The BIA determined that a particular social group must "share a common, immutable characteristic." Id. "The group characteristic must be one `that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities and consciences.'" Davila-Mejia v. Mukasey, 531 F.3d 624, 628 (8th Cir.2008), quoting Acosta, 19 I. & N. at 233. "The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience...." Acosta, 19 I. & N. at 233.

"Recently, In re C-A-, 23 I. & N. Dec. 951 (BIA 2006), the BIA reaffirmed the Acosta test and provided further clarification regarding its proper application." Koudriachova v. Gonzales, 490 F.3d 255, 261 (2d Cir.2007). "In re C-Areiterated that shared past experiences constitute an immutable characteristic because a past experience cannot be undone." Koudriachova, 490 F.3d at 261, citing In re C-A-, 23 I. & N. at 958. The "central" question is whether the applicant's status as a member of a particular social group is the reason for that individual's persecution. Koudriachova, 490 F.3d at 261. Further, the BIA explained that Acosta does not require a "voluntary associational relationship" or "cohesiveness or homogeneity among group members." In re C-A-, 23 I. & N. at 956-57. A group's visibility— the extent to which members of the applicant's society perceive those with the characteristics as members of a social group— is relevant. Koudriachova, 490 F.3d at 261, citing In re C-A-, 23 I. & N. at 957, 959-60.

The BIA determined that Ngengwe's first asserted social group—any widowed Cameroonian female member of the Bamileke tribe, in the Southern region that belongs to a family or has in-laws from a different tribe and region, the Bikom tribe in the Northwest province, who have falsely accused her of causing her husband's death—did not have a common immutable aspect shared by...