Humphrey Mbah v. Eric Holder, Jr., No. 09-1238 (4th Cir. 2010)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1238 HUMPHREY TEBOH MBAH, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Argued: March 26, 2010 Before TRAXLER, Judges. Chief Decided: Judge, and GREGORY and July 15, 2010 AGEE, Circuit Petition for review granted by unpublished per curiam opinion. ARGUED: Danielle L. C. Beach-Oswald, BEACH-OSWALD IMMIGRATION LAW ASSOCIATES, PC, Washington, D.C., for Petitioner. Allison Frayer, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Amy M. Grunder, BEACH-OSWALD IMMIGRATION LAW ASSOCIATES, PC, Washington, D.C., for Petitioner. Tony West, Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright, Senior Litigation Counsel, Anthony J. Messuri, Trial Attorney, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. Unpublished opinions are not binding precedent in this circuit. 2 PER CURIAM: Petitioner Humphrey Teboh Mbah, a citizen of Cameroon, conceded removability and applied for asylum and withholding of removal under the Immigration and Nationality Act ( INA ), and for relief under the Convention Against Torture ( CAT ). claims he physical fled abuse Cameroons Cameroon because National of after being his arrested affiliation Counsel ( SCNC ), and with the which Mbah suffering Southern advocates independence for southern Cameroonian provinces. At his asylum hearing, Mbah testified that he was detained twice by government agents as a result of his SCNC activities. Mbah testified that his first arrest occurred on December 31, 1999, in Bamenda while he and other SCNC members were celebrating the announcement that Southern Cameroon had declared independence. According to Mbah, he was detained for five days during which time he suffered numerous beatings. that his detention came intervention of the SCNC. to an end as a Mbah stated result of the Mbah was arrested for a second time in May 2003 during the funeral of former SCNC leader Martin Luma and eventually detained in New Bell prison in Douala. claims that he was detained for almost two weeks but Mbah was ultimately released after his brother arranged a bribe. An Immigration Judge found that Mbah was not credible in light of all of the evidence and all of the testimony before 3 the court. J.A. 58. Specifically, the Immigration Judge concluded that Mbah s credibility was undercut by a number of discrepancies between Mbah s asylum application and his testimony at the hearing, as well as by other implausibilities in Mbah s narrative. Mbah s corroborating evidence included the testimony of Frida Ngwa, who appeared at the hearing solely to verify that all of the information affidavit was accurate. contained in her previously-submitted Both the Government and the Immigration Judge declined to question Ngwa. According to her affidavit, Ngwa has first-hand knowledge about Mbah s arrest on December 31, 1999 and his subsequent detention. Ngwa was an SCNC National Executive at the time and was able to visit the SCNC detainees who were including Mbah. Mbah had arrested during the Bamenda celebrations, Based on her observations, Ngwa stated that sustained serious injuries all over his body, especially around his ribs and ankle and that [h]e was unable to stand on his feet due to the torture and beat[ings] he got from the arrest. Mbah s testimony. J.A. 295. The Her statement was consistent with Immigration Judge, however, rejected Ngwa s testimony that she visited Mbah in jail because there was no evidence other than her word officer with the SCNC in Cameroon. 4 that she was an executive Mbah also presented the testimony of Eric Takwi, an elected official of primarily the to American authenticate branch of documents the SCNC, sent who from appeared Cameroon by Charles Mbide Kude, the Assistant Executive Secretary General of the SCNC in Cameroon. Kude s documents, in turn, purported to confirm the general details of Mbah s arrests and detentions. At Takwi s request, Kude drafted an affidavit indicating that Mbah had been arrested and detained twice; Kude s information was based not on first-hand knowledge but on reports from the SCNC Head Office in Southern Cameroon and its agents and affiliates, as well as with grass-roots SCNC activists . . . [and] close family relations. J.A. 466. At the hearing, Takwi testified that he had worked with Kude for two years and was familiar with his signature. Neither the Government nor the Immigration Judge questioned Takwi about the authenticity of the Kude documents. Nevertheless, the Immigration Judge rejected the Kude affidavit and the SCNC Statistics Bureau Chart that were authenticated by Takwi at the hearing; the judge concluded that there was insufficient evidence for this Court to find that this particular document is a reliable document because it did not explain the source of [its] information. J.A. 59. The Immigration Judge, having made an adverse credibility determination, concluded that Mbah s corroborating evidence was insufficient to sustain Mbah s burden of proving his claims. 5 The Board of Immigration Appeals ( BIA ) affirmed the denial of all forms of relief. It concluded that the adverse credibility determination was not clearly erroneous and that the Immigration Judge properly considered all of Mbah s additional evidence. Mbah argues that the Immigration Judge erroneously discounted the affidavits and testimony of Ngwa and Takwi, two witnesses who provided important corroboration for Mbah s claim. We agree. Although Ngwa testified at the hearing, she appeared for the primary purpose of affirming her previously-submitted affidavit. was Thus, the Immigration Judge, in discrediting Ngwa, essentially discounting her affidavit which Mbah s condition during his first confinement. judge cannot reject documentary evidence Judge found absolutely no corroboration to An immigration without cogent reasons why the documents are not credible. Holder, 588 F.3d 234, 241 (4th Cir. 2009). attested specific, Kourouma v. The Immigration whatsoever as to [Ngwa s] position as a national executive member of the SNC, which the judge believed to be necessary because according to her affidavit it was in this capacity that she allegedly visited the respondent in jail. J.A. 63. Thus, the Immigration Judge s specific and cogent reason for rejecting Ngwa s corroborating affidavit was that it lacked its own corroboration. that evidence offered However, [t]here is no general rule in corroboration 6 requires independent corroboration. Cir. 2010). Marynenka v. Holder, 592 F.3d 594, 602 (4th In fact, it is legal error for an Immigration Judge to reject the statement of a corroborating witness under the mistaken belief corroboration. that corroborating evidence requires further Id. Moreover, despite Ngwa s appearance at the hearing, she was never asked to provide objective evidence of her former position in the SCNC or to explain the absence of such corroborating evidence. [E]ven for credible testimony, corroboration may be required when it is reasonable to expect such proof and there is no reasonable explanation for its absence. Lin-Jian Gonzales, 489 F.3d 182, 191-92 (4th Cir. 2007). [t]he requirement that the [witness] v. Significantly, provide a reasonable explanation for the lack of corroborating evidence presumes that the IJ offers . . . an opportunity to explain the absence. at 192 (internal quotation marks omitted). By Id. failing to question Ngwa about the lack of corroboration for her status in the SCNC, the Immigration Judge inadvertently foreclosed Ngwa s ability to address the court s concern. The Immigration Judge erroneously discounted the documentary evidence Kude s testimony of Takwi affidavit, in particular introduced grounds. The affidavit s and also Immigration lack of a Judge detailed 7 through was him on the hearsay troubled by the Kude explanation of how the information about Mbah s arrests was gathered. The Immigration Judge concluded that neither the testimony of Mr. Takwi nor the affidavit of . . . Kude are sufficiently reliable . . . to corroborate [Mbah s] claim. that the rules hearings. F.3d of evidence J.A. 59. do not It is well-established apply strictly to asylum See Kourouma, 588 F.3d at 241; Singh v. Ashcroft, 398 396, 406-407 (6th Cir. 2005) (explaining that [e]videntiary matters in immigration proceedings . . . are not subject to the Federal Rules of Evidence ), and hearsay evidence is admissible as corroborating evidence in removal proceedings, see Lin v. United States Dep t of Justice, 459 F.3d 255, 272 (2d Cir. 2006). In rejecting the Kude affidavit, the Immigration Judge did not offer any reason to question the reliability of the document Likewise, other the than the government did fact that not offer it contained rebuttal hearsay. evidence or cross-examine Takwi as to the reliability of the document. The Immigration Judge, therefore, committed legal error in rejecting affidavit, the testimony requiring us of to Ngwa and Takwi vacate the Board s and the Kude decision and remand for further consideration of Mbah s claims for relief in light of this opinion. See Marynenka, 592 F.3d at 602. In so doing, the immigration judge should also reconsider the adverse credibility determination. Accordingly, 8 we grant Mbah s petition for review and remand for the Immigration Judge to reconsider Mbah s claims for relief. PETITION FOR REVIEW GRANTED 9
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