Zuh v. Mukasey

• Citation: 547 F.3d 504
• Decision Date: 25 November 2008
• Docket Number: No. 06-2050.,06-2050.
• Parties: Chi Alfred ZUH, a/k/a Chi A. Zuh, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

547 F.3d 504

Chi Alfred ZUH, a/k/a Chi A. Zuh, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 06-2050.

United States Court of Appeals, Fourth Circuit.

Argued: September 25, 2008.

Decided: November 25, 2008.

ARGUED: Sarah M. Brackney, Arnold & Porter, L.L.P., Washington, D.C., for Petitioner. Thomas Henderson Dupree, Jr., United States Department of Justice, Washington, D.C., for Respondent. ON BRIEF: Rod J. Rosenstein, United States Attorney, Alex S. Gordon, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Respondent.

Before MOTZ, KING, and DUNCAN, Circuit Judges.

Vacated and remanded by published opinion. Judge MOTZ wrote the opinion, in which Judge KING and Judge DUNCAN joined.

OPINION

DIANA GRIBBON MOTZ, Circuit Judge:

An Immigration Judge (IJ) found Chi Alfred Zuh eligible for asylum and granted him withholding of removal and protection under Article 3 of the United Nations Convention Against Torture. Despite Zuh's eligibility, the IJ denied asylum as a matter of discretion. The Board of Immigration Appeals (BIA) affirmed without opinion. Zuh petitions for review of this final order. Finding that the IJ failed to consider the totality of the circumstances in denying Zuh asylum, we vacate and remand for further proceedings consistent with this opinion.

I.

Zuh, a native of Cameroon, came to this country in 2001 and soon thereafter sought asylum. He claims to have been subject to severe torture and beatings in Cameroon due to his political activities in two opposition parties, the Social Democratic Front (SDF) and the Southern Cameroon National Council (SCNC).

Specifically, Zuh testified that the Cameroonian government arrested and tortured him on four separate occasions: in February 1995, in January 1997, in May 1997, and finally in September 2001. On all four occasions, Zuh was stripped naked, severely beaten, confined for extended periods in inhumane quarters, and given little food, water, or medicine. He had to be hospitalized after being released and suffered permanent injuries, which he documented through medical certificates from a Cameroonian doctor and a letter from an American doctor.

Fearing for his life after the fourth imprisonment, Zuh escaped from prison and immediately thereafter, with the help of his uncle, borrowed a French passport. He then flew to the United States and took up residence with his uncle's friend, Peter Clarkson Fon. Zuh belongs to the American chapters of both the SDF and the SCNC. He believes that the Cameroonian government will arrest, torture, and possibly kill him if the United States returns him to Cameroon.¹

At Zuh's first hearing, the IJ denied him all relief. The IJ found Zuh's supporting documentation to be of limited probative value and faulted him for presenting insufficient corroborating evidence, such as other witnesses or letters from family members in Cameroon. As a result, the IJ found that although Zuh carried his burden of proof as to general conditions in Cameroon, he did not present sufficient evidence of danger specific to himself. Significantly, however, the IJ did not fault Zuh's veracity or find him incredible.

On appeal, the BIA remanded the case to the IJ in light of new evidence Zuh presented to the Board. At the second hearing before the IJ, Zuh testified that at the first hearing he had been reluctant to involve his family for fear of endangering them. But, in what he described as an agonizing decision, he decided to provide new documentary evidence from his family. Two witnesses also testified on Zuh's behalf: a friend of his fiancée's, Henrietta Bettah, and the man with whom he lives in the United States, Peter Clarkson Fon.

After the conclusion of the second hearing, the IJ granted Zuh withholding of removal and protection under the Convention Against Torture. The IJ reasoned that Zuh—ostensibly through the testimony of his two witnesses—had shown a "clear probability that someone in [Zuh's] position ... would face the prospect of torture." But "in the exercise of [her] discretion" the IJ denied Zuh asylum because of Zuh's assertedly "incredible documentation" and "not completely truthful" testimony. In reaching this conclusion, the IJ entered what she characterized as a "split credibility finding," stating that although Zuh's witnesses were credible, he was not. She also based this "split credibility finding" on her conclusion that Zuh's documents had "little or no probative value" either because they did not constitute affidavits or because they contained alleged irregularities.

The BIA, through a single member, affirmed without opinion. Zuh then filed this petition for review.

II.

A.

We have jurisdiction over final orders of removal under 8 U.S.C. § 1252(a)(1) (2006). When the BIA summarily affirms the IJ's decision, we review the correctness of the BIA's final order but review the reasoning of the IJ's opinion, "recognizing that the Board has concluded that any error in reasoning is `harmless or nonmaterial.'" Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.2004) (quoting 8 C.F.R. § 1003.1(e)(4)).

We review an IJ's discretionary denial of asylum for abuse of discretion. Dankam v. Gonzales, 495 F.3d 113, 119 n. 2 (4th Cir.2007). Although this standard of review is deferential, it does not offer an IJ a blank check. See Huang v. INS, 436 F.3d 89, 97 (2d Cir.2006) (noting that the courts and the BIA have established "extensive limitations on an IJ's exercise of discretion in the context of asylum-eligible refugees"). Rather, an IJ must weigh all relevant evidence under the totality of the circumstances. Dankam, 495 F.3d at 119 n. 2; Kalubi v. Ashcroft, 364 F.3d 1134, 1139 (9th Cir.2004); Shahandeh-Pey v. INS, 831 F.2d 1384, 1387 (7th Cir.1987). Moreover, as we have long recognized, an IJ must "`offer a specific, cogent reason for [his or her] disbelief'" of the applicant, Figeroa v. INS, 886 F.2d 76, 78 (4th Cir. 1989) (quoting Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987)), and we will not defer to adverse credibility findings based on "`speculation, conjecture, or an otherwise unsupported personal opinion.'" Tewabe v. Gonzales, 446 F.3d 533, 538 (4th Cir.2006) (quoting Dia v. Ashcroft, 353 F.3d 228, 250 (3d Cir.2003) (en banc)).

B.

Zuh applied for three different protections: asylum under 8 U.S.C. § 1158(b) (2006), withholding of removal under 8 U.S.C. § 1231(b)(3) (2006), and protection under Article 3 of the United Nations Convention Against Torture (CAT). The IJ, the BIA, and the Government do not contend that Zuh failed to meet the standards for the last two—withholding of removal and CAT protection—both of which entail a greater burden of proof than the first— asylum eligibility.² Nor do they contend that any statutory factors bar Zuh from asylum. See 8 U.S.C. § 1158(b)(2) (2006). Thus, indisputably Zuh has established asylum eligibility. The question before us is whether the IJ appropriately exercised her discretion in denying Zuh this relief.

An asylum applicant who meets the legal standard for asylum is only "eligible for asylum," which the Attorney General (or his or her designee) "in his [or her] discretion" may grant. INS v. Cardoza-Fonseca, 480 U.S. 421, 443, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Although discretionary denials of asylum do occur, such denials are "exceedingly rare," Huang, 436 F.3d at 92, and are generally based on egregious conduct by the applicant. See, e.g., Aioub v. Mukasey, 540 F.3d 609, 612 (7th Cir.2008) (applicant's fraudulent marriage); Kouljinski v. Keisler, 505 F.3d 534, 543 (6th Cir.2007) (applicant's three drunk-driving convictions).

A discretionary denial of asylum is even more rare when the IJ or BIA has found the applicant entitled to withholding of removal or protection under the CAT. Although applicable regulations permit an IJ to grant withholding of removal while denying discretionary asylum, see 8 C.F.R. § 208.16 (2008), the Board has affirmed such a disposition in very few cases and only when the Government has demonstrated egregious negative activity by the applicant. See, e.g., Matter of Shirdel, 19 I. & N. Dec. 33, 37-38 (B.I.A.1984) (applicant circumvented orderly refugee procedures by using a smuggler to gain entry into the United States). Furthermore, we know of only one (unpublished) Court of Appeals decision upholding such a disposition. Aden v. Ashcroft, 112 Fed.Appx. 852 854 (3d Cir.2004) (applicant repeatedly failed to disclose his prior grant of asylum in a third country). On the other hand, two other Courts of Appeals, addressing similar situations, have soundly rejected this course. See Huang, 436 F.3d at 97-102; Kalubi, 364 F.3d at 1138-39. Indeed, the Attorney General himself acknowledges in a motion filed in this court that the IJ's holding in this case is "internally inconsistent."

We agree with the Second Circuit that this sort of resolution places an applicant in an "unusual legal status," in which he is ineligible to become a lawful permanent resident here, unable to reunite his family as derivative asylees, and subject to deportation to a willing third country. Huang, 436 F.3d at 95. We bear this in mind as we turn to the rationale offered by the IJ in this case.

III.

Based on her "split credibility finding," the IJ exercised her discretion to deny Zuh asylum. Zuh contends that no substantial evidence supports this finding. He notes that at his first hearing, the IJ did not enter an adverse credibility determination and that at his second hearing the IJ refused to allow him to testify at length, stating that she did not want to cover "old ground." Thus, he contends that although the IJ did not make an adverse credibility finding at the first hearing, her subsequent "split credibility finding" effectively invalidated the bulk of his testimony from that first hearing.

A.

The IJ appears to rest her determination that Zuh was not "particularly credible" on what she...