Siewe v. Gonzales, Docket No. 05-6563-ag.

• Citation: 480 F.3d 160
• Decision Date: 13 March 2007
• Docket Number: Docket No. 05-6563-ag.
• Parties: Felix Norbert SIEWE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

480 F.3d 160

Felix Norbert SIEWE, Petitioner, v. Alberto R. GONZALES, Attorney General, Respondent.

Docket No. 05-6563-ag.

United States Court of Appeals, Second Circuit.

Submitted: November 29, 2006.

Decided: March 13, 2007.

Glenn T. Terk, Wethersfield, CT, for Petitioner.

Jenny L. Smith, Assistant United States Attorney (Alice H. Martin, United States

Attorney for the Northern District of Alabama, on the brief), United States Attorney's Office for the Northern District of Alabama, Birmingham, AL, for Respondent.

Before JACOBS, Chief Judge, WALKER and RAGGI, Circuit Judges.

JACOBS, Chief Judge.

Petitioner Felix Norbert Siewe, a native and citizen of the Republic of Cameroon, seeks review of a November 17, 2005 order of the Board of Immigration Appeals ("BIA") affirming (without opinion) the January 15, 2004 decision of immigration judge ("IJ") Michael W. Straus, which denied Siewe's application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Siewe, Felix Norbert, No. A96 266 945 (B.I.A. Nov. 17, 2005), aff'g A96 266 945 (Immig. Ct. N.Y. City Jan. 15, 2004). Siewe claims that the IJ's adverse credibility finding is not supported by substantial evidence because the IJ "erroneously resorted to speculation and conjecture when assessing the evidence," and because any inconsistencies relied upon by the IJ are "immaterial and easily and reasonably explained." We conclude that the IJ's incredulity was supportable by Siewe's submission of a suspect document, and that the IJ's finding that an arrest warrant was inauthentic rested on permissible inferences rather than bald speculation. Since the IJ's decision is thus supported by substantial evidence, the petition is denied.

I

A. Asylum Application (May 2003)

In May 2003, Siewe applied for asylum, withholding of removal, and relief under CAT. His application stated that he was born in May 1964 in Cameroon; that his wife and two children continue to live in Cameroon; and that he was subjected to political persecution by reason of his affiliation with Cameroon's largest opposition party, the Social Democratic Front ("SDF"), which is led by John Fru Ndi. The claimed particulars were:

(i) Siewe joined the SDF in 1990, was in charge of "socio-cultural activities" from 1995-2000, and served as "Secretary in Charge of Organization and Coordination" from 2001-2002;

(ii) in the 2002 elections, Siewe was campaign manager for an SDF candidate for the national assembly, Jean-Michel Nintcheu;

(iii) Siewe was arrested on June 28, 2002 (two days before Cameroon's national elections) in order "to prevent the story of the election frauds from coming out," and subsequently "detained in various cells" without charge for ten weeks, during which time he was fed only twice, beaten, and tortured; and

(iv) he will be arrested, tortured or executed if he returns to Cameroon because he has information about "massive fraud in the [2002] elections."

B. Asylum Officer Interview (June 2003)

An asylum officer interviewed Siewe in June 2003, and concluded that Siewe was not credible primarily because dates given for important events were inconsistent.

According to the asylum officer's typed report, Siewe claimed: that he was named Nintcheu's campaign manager at the beginning of June 2002 for elections then scheduled for June 23, 2002; that two days before election day (on June 21), he joined many SDF members outside a government office, where they protested that they had not yet received voting cards required for balloting; that on the morning of election day the government postponed the elections for one week, to June 30, 2002; that he returned to the government office on June 26, 2002 and threatened an election boycott unless the voting cards were timely issued; that he was arrested leaving work the next afternoon, taken to the judicial police office, transferred that night to another prison, and held there in the same cell for ten weeks; and that he was finally released outside a hospital when "he became ill."

To evidence his appointment as Nintcheu's campaign manager, Siewe presented a letter, which was dated June 5, 2002, and which, as the asylum officer observed, listed the date of the elections as June 30. As of the June 5 date of the letter, however, the election was scheduled for June 23, as Siewe stated and as evidenced by the State Department's 2002 Cameroon Country Report. It was not until "after the opening of the polls on June 23," that the election was postponed to June 30. Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Cameroon: Country Reports on Human Rights Practices-2002 (2003), available at http://www. state.gov/g/drl/rls/hrrpt/2002/18172.htm (last accessed Mar. 9, 2007). The asylum officer therefore found "[t]he validity of this document .. . highly suspect" and decided that Siewe failed to sustain his burden of establishing that he is a refugee.

The asylum officer expressed other doubts as well: Siewe's application said he was detained in "various cells and prisons" after he was taken to the police station, yet Siewe stated in his interview that he remained in one cell throughout his ten-week detention; the protests in which Siewe claimed to have participated were unreported in the press; and Siewe claimed that he left Cameroon on a passport in his own name notwithstanding a pending warrant for his arrest.

C. IJ Hearing (January 2004)

At the hearing conducted by the IJ, Siewe (represented by counsel) generally repeated the accounts given earlier, with some elaboration, some explanation for inconsistency, and some additional documentary evidence.

Siewe testified that after his arrest he was beaten at the Douala police station, and then held at another prison for ten weeks in a single cell with twenty other prisoners, where they slept on the floor, used buckets for toilets, were fed only twice ("three or four pieces of bread"), and were beaten with belts on the chest and wooden sticks on the legs and feet; Siewe stated that one prisoner died. Siewe testified that he was never charged or permitted to see a lawyer; that he was left for dead in front of a hospital in Douala where he was treated for two weeks; that when he left the hospital, he hid with his brother in a suburb of Douala, during which time (Siewe's wife told his brother) the police came looking for him and killed his dog; and that he twice returned to work so that he could seek and get a "vacation letter," which he used to obtain a U.S. visa.

Siewe acknowledged that his asylum application omitted some of the events and facts to which he had just testified, including being left for dead at the hospital, and the visit by police who killed his dog, but explained that after starting to give a detailed account in his application, he was forced to abbreviate things to reduce the cost of translation. When asked why he omitted these events and facts when he was interviewed by the asylum officer, Siewe testified that the asylum officer "wouldn't let me answer except to the question that he was asking." Also, he asserted that he told the asylum officer that he was left for dead when he was dropped at the hospital, and could not understand why the officer only wrote that "he became ill." As to certain of the inconsistencies observed by the asylum officer—detention in various cells rather than one, and membership in the SDF since 1990 rather than 1995—Siewe blamed the interpreter who assisted with the asylum application.

Siewe was cross-examined—and questioned by the IJ—about various inconsistencies in the documentary evidence. Siewe submitted a photocopy of the arrest warrant that he claimed was posted at his house after he left the hospital. Siewe testified that he forgot to keep the original, and that he carried the photocopy with him when he left the country (supposedly as a fugitive) because his wife's friend was a police inspector at the airport and "facilitate[d]" his departure from Cameroon. Siewe did not know why the warrant, which purported to have been signed by the Commander of the National Police, would acknowledge the existence of "political police": "Frankly, a lot of things are done at the local police level without the acceptance or acknowledgment of the higher ups in government." Nor could he explain why the warrant stated that he had five children, when Siewe testified that he had two.

Siewe also submitted two letters purporting to have been signed by a local SDF president, one Tchamambe: the first attested to Siewe's party membership, and the other helpfully recited that Siewe "found himself obliged to disappear for an unknown destination after the elections on June 30, 2002, as a result of persecution, physical torture and detention during which he was abused." The IJ confronted Siewe with a publication by the British Foreign Office that states: "The SDF is aware that some Cameroonian asylum applicants have submitted letters and documents purporting to have been issued by the SDF in support of their applications for asylum. The SDF have stated that such letters of support could only be issued by the Chairman of the SDF, John Fru Ndi." Siewe explained that the local president "hesitated," but that Siewe "begged him . . . to sign it" because the letters "wouldn't have made it here in time" if they had to be signed by Chairman Ndi. Siewe added that, because the local president was not authorized to send such letters, he refused to send Siewe the original version of the letter, and only sent a copy.

Siewe submitted a medical certificate dated September 12, 2002—two days after he was purportedly admitted to the hospital—stating that Siewe "claimed that he was a victim of police brutality," and documenting "[m]ultiple contusions, [a] painful tumefaction of the soles of the feet [and a] penetrating wound in the Sternal region of the chest." Siewe testified that he awoke in the hospital on September 12, and...