Ugbome v. Atty Gen USA , 195 F. App'x 106 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-13-2006
Ugbome v. Atty Gen USA
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-3020
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 05-3020
PATIENCE UGBOME,
Petitioner
v.
ATTORNEY GENERAL OF THE
UNITED STATES; SECRETARY OF
DEPARTMENT OF HOMELAND SECURITY,
Respondents
Petition for Review of the Order
of the Board of Immigration Appeals
(A97-516-242)
Immigration Judge: Hon. Grace A. Sease
Submitted Under Third Circuit LAR 34.1(a)
September 12, 2006
Before: SCIRICA, Chief Judge, SLOVITER, and BARRY, Circuit Judges
(Filed September 13, 2006)
OPINION
SLOVITER, Circuit Judge.
Patience Ugbome has filed a timely petition for review of the decision of the Board
of Immigration Appeals (“BIA”) affirming without opinion the order of the Immigration
Judge (“IJ”) denying her application for asylum, withholding of removal, and relief under
the Convention Against Torture (“CAT”). The IJ found that Ugbome had failed to meet
her burden of proving eligibility for asylum, 8 U.S.C. § 1158(b)(1)(B)(i), withholding of
removal, 8 U.S.C. § 1231(b)(3)(C), or relief under the CAT, see 8 C.F.R. § 1208.16(c),
based on the IJ’s determination that Ugbome’s story was not credible and was not
sufficiently corroborated. We have jurisdiction under 8 U.S.C. § 1252(a)(1). We will
grant the petition for review.
I.
Ugbome is a thirty-eight-year-old native and citizen of Nigeria. She entered the
United States on July 6, 2004, with her nine-year-old son, Custer. She has been married
since 1996 to Godwin Ugbome, with whom she resided in Effurun, in the Delta state of
Nigeria. Her asylum claim is based upon persecution she claims to have suffered as a
result of her husband’s political activism and subsequent disappearance.
Ugbome conceded removability and filed an application for asylum, withholding
of removal, and withholding of removal under the CAT. Her asylum hearing was held on
October 20, 2004. In support of her application, Ugbome testified and presented
documentary evidence including country reports, a newspaper article from a Nigerian
newspaper regarding her husband’s disappearance, and sworn statements from Moses
2
Ugbome, her husband’s brother, and the Ugbomes’ family attorney in Lagos.
Ugbome testified that her husband became involved in the Niger Delta Youth
Movement (“NDYM”) in 2001. NDYM sought to secure jobs and social services for
Nigerians and to clean up the pollution caused by oil companies in the Niger Delta. Its
members engaged in frequent protests against foreign oil companies suspected of causing
pollution. Ugbome testified that NDYM held protests about twice a month, drawing 200
to 300 people to each protest, and that her husband would often speak at these protests.
The protests would begin in the town of Effurun and end in Warri. The police used
threatening and violent methods such as whips, tear gas, and shooting guns in the air in
order to suppress them.
Ugbome testified that her husband was invariably arrested during or after the
protests. When the police came to their home looking for her husband, they would push
Ugbome around. Her husband was detained for about a week after each protest and
would return home with a swollen face and bruises from beatings. She testified that they
could not seek treatment at the hospital because the hospitals would not treat the injuries
without asking that a police report be filed about the source of the injuries. They treated
his injuries with painkillers and medicine from the pharmacy instead.
Ugbome testified that in order to avoid further detention and to protect the family,
her husband left the Niger Delta on July 18, 2003. She has not heard from him since,
although he had promised to send for her when he found a safe place for them to settle.
Ugbome testified that after her husband’s departure, the police would come to her home
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about twice a month looking for him, threatening and intimidating her in order to find
him. Ugbome testified that the police took her and her infant daughter to the police
station on January 5, 2004. The police interrogated her and threatened her for three to
four hours before letting her go. Ugbome stated that she believed they would have
physically hurt her if not for the presence of her daughter (who died due to a congenital
heart defect before Ugbome came to the United States). Ugbome left the Delta region in
May 2004 because “the threat was becoming too much.” App. at 102.
Ugbome stayed in Lagos, where her husband’s family resided, for a month, but left
at the advice of her husband’s family after her daughter’s death. She traveled with her
son and Moses Ugbome to Cotonou in the neighboring country of Benin, where they
stayed for about two weeks, during which time Moses Ugbome acquired visas and airline
tickets for them to travel to the United States. She testified that he told her he had
acquired those items with a friend of her husband’s. Ugbome and her son left for the
United States on July 8, 2004, where they were detained by Customs’ Officials, who
determined that the visas were fraudulent.
On cross-examination, Ugbome testified that her sister still lived near Warri, but
that the rest of her family and her husband’s family lived in Lagos. She testified that she
did not know much about the protests in which her husband participated because she did
not attend them. She was unable to remember the month of the first time in 2001 that her
husband was arrested after a protest.
She stated the date of her own detention by the police as January 15, 2004, instead
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of January 5, 2004, as she had on direct and as she did in her second affidavit in support
of her application for asylum. She did not know with whom her husband had departed
Warri, except for one person whose wife had told her in the marketplace that she also had
not heard from her husband. She did not know much about NDYM members because she
was not involved in the group.
Ugbome was also cross-examined about the circumstances of the interview that
resulted in the publication of a small story in the Daily Independent, a newspaper in
Nigeria. She stated that she gave the interview in May while she was in Lagos, but that
the article was not published until after she had left for the United States almost two
months later. She said she was put in contact with the reporter by Moses Ugbome, and
that she had given the interview despite the fact that it would draw attention to her
whereabouts because she wanted the government “to answer the plight of the Delta state
movement.” App. at 135.
In response to questions from the IJ, Ugbome reported that her husband was self-
employed as a vendor of stationary and paper products, and that he worked from home.
Despite his repeated detentions, she stated that her husband was still able to support the
family because he was self-employed and could work whenever he was not being
detained, although she was unable to provide details about how he did this.
Ugbome stated that she did not know how the United States immigration stamp
from December, 2002 had gotten into her passport because she had never before been to
the United States. She also did not know the visas Moses Ugbome had acquired were
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false because she did not know anything about visas and she did not look at them.
The IJ denied Ugbome’s claims for asylum, withholding of removal and CAT
relief based on her finding that Ugbome’s story was not credible and that she had not
provided sufficient corroboration of her claims. She noted the lack of documentation of
Ugbome’s story from people within the Delta region who would have firsthand
knowledge of Godwin Ugbome’s membership in NDYM and his political activities. She
also noted inconsistencies between Ugbome’s story and some of the background
materials, which reported manned checkpoints and curfews in Warri during the time
period when Ugbome’s husband was allegedly participating in mass protests twice a
month. The IJ concluded that Ugbome’s claim that there had been demonstrations twice
a month was exaggerated. The IJ noted that Ugbome’s only independent corroboration
was the newspaper article that had appeared as a result of the interview she herself had
provided. The IJ determined that the “interview appears to have been created for the sole
purpose of establishing the facts that [Ugbome] has presented today.” App. at 54.
The IJ also discounted the value of the sworn statements from Moses Ugbome and
the Ugbomes’ attorney. The IJ found that their statements failed to demonstrate any
firsthand knowledge of Godwin Ugbome’s activities. The IJ also noted that there was no
marriage certificate or any other proof that Ugbome was married. The IJ found that
Ugbome “has failed to present the corroborating evidence that would be reasonably
expected from individuals in the Niger Delta who could corroborate . . . her husband’s
political activism and his high-profile speaking ability. Her reasons for not providing it
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can only be described as lame.” App. at 56. The IJ also found that Ugbome had willfully
presented a false visa, because the visa was dated 2002, so it would be obvious that it was
forged: “It’s [sic] strains credulity to think that somebody attempting to enter the United
States on a visa would not examine that visa prior to representing it.” App. at 56.
The IJ also noted that Ugbome had failed to demonstrate that she could not safely
relocate within Nigeria. The IJ concluded that Ugbome had failed to meet her burden to
qualify for asylum, withholding of removal or relief under the CAT and accordingly
ordered her removed. The BIA affirmed on May 16, 2005, without opinion.
II.
Because the BIA affirmed without opinion, we review the IJ’s opinion under the
same standards of review as we would a decision of the BIA. Abdulai v. Ashcroft, 239
F.3d 542, 549 n.2 (3d Cir. 2001). To qualify for asylum, an alien must demonstrate that
she is a “refugee,” which means that she is unable or unwilling to return to her country of
nationality because of past persecution or a well-founded fear of future persecution on
account of race, religion, nationality, membership in a particular social group, or political
opinion. 8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A). The IJ’s conclusion that Ugbome did
not meet her burden to demonstrate a likelihood of persecution was based on the IJ’s
finding that Ugbome’s testimony was not credible. This is a determination of fact that we
review for substantial evidence. Dia v. Ashcroft, 353 F.3d 228, 247-48 (3d Cir. 2003) (en
banc).
We have stated that “[a]n alien’s credibility, by itself, may satisfy his burden, or
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doom his claim.” Id. at 247. In this case, although the IJ noted certain discrepancies in
Ugbome’s testimony, the IJ primarily grounded her finding of adverse credibility in
Ugbome’s failure to present corroborating evidence.1 She held that Ugbome “has
presented no corroboration of the activities that she alleged took place in the Delta state,”
noting the absence of statements from family members who live in the region “that would
know of her husband’s alleged activities and of her alleged involvement with the police
because of her husband.” App. at 52. The IJ also stated that basic aspects of Ugbome’s
claim, such as her marriage to Godwin Ugbome, her husband’s membership in NDYM
and his activities on behalf of that group, were left uncorroborated. See Miah v. Ashcroft,
346 F.3d 434, 439 (3d Cir. 2003) (noting Abdulai’s three-part test for determining
whether an applicant could be required to provide corroborating evidence: (1) an
identification of the facts for which it is reasonable to expect corroboration; (2) an inquiry
as to whether the applicant has provided material corroborating the relevant facts; and, if
he or she has not, (3) an analysis of whether the applicant has adequately explained his or
1
The court notes that, while “[i]t might seem intuitive that a lack of corroboration could
cast doubt on the veracity of a witness’s testimony,” a credibility determination is
nevertheless “to be independent of an analysis of the sufficiency of an applicant’s
evidence” and “[a] failure of proof is not a proper ground per se for an adverse credibility
determination. The latter finding is more appropriately based upon inconsistent
statements, contradictory evidence, and inherently improbable testimony.” Chen v.
Gonzales, 434 F.3d 212, 221 (3d Cir. 2005); see also Toure v. Att’y Gen., 443 F.3d 310,
323 (3d Cir. 2006) (“[C]orroboration and credibility, although intuitively related, are
distinct concepts that should be analyzed independently.”); Senathirajah v. I.N.S., 157
F.3d 210, 216 (3d Cir. 1998) (“Common sense establishes that it is escape and flight, not
litigation and corroboration, that is foremost in the mind of an alien who comes to these
shores fleeing detention, torture and persecution. Accordingly, corroboration is not
required to establish credibility.”).
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her failure to do so) (internal citations and quotations omitted).
While it is reasonable to expect corroboration for Ugbome’s marriage and her
husband’s connection with NDYM – clearly central to Ugbome’s claim – and the Real ID
Act of 2005 makes it clear that an IJ’s conclusion as to the availability of unproduced
corroborative material is entitled to great deference,2 this is not a case where the applicant
has utterly failed to provide corroborating evidence. The IJ’s characterization of Ugbome
as providing “no corroboration,” App. at 52, is not supported by substantial evidence as
she did provide a family member’s corroboration of the facts that fundamentally support
her claim.
Two sworn affidavits from her brother-in-law, Moses Ugbome, assert that
Ugbome was married to Godwin Ugbome, that her husband was a member of NDYM and
a political activist, that the government had used military personnel and police to arrest
the husband, who had gone into hiding, that the government continued to search for him,
and that “their inability to locate him has necessitated their constant harassment of
. . . [Ugbome]. . . .” App. at 180. Ugbome has also provided a letter of attestation from
an Ugbome family attorney, Ayoola Orobowale, noting the same facts. App. at 182-83.
Letters “from family members remaining in the applicant’s home country” are precisely
the sort of evidence frequently contemplated in corroboration analysis. Miah, 346 F.3d at
2
Under the REAL ID Act of 2005, “[n]o court shall reverse a determination made by a
trier of fact with respect to the availability of corroborating evidence . . . unless the court
finds . . . that a reasonable trier of fact is compelled to conclude that such corroborating
evidence is unavailable.” 8 U.S.C. § 1252(b)(4).
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441; Abdulai v. Ashcroft, 239 F.3d 542, 549, 554-55 (3d Cir. 2001) (also noting that, for
due process purposes, a “decisionmaker must actually consider the evidence and
argument that a party presents”).
While the IJ did elsewhere note the existence of the affidavits attested to by
Ugbome’s brother-in-law,3 nevertheless, in holding explicitly that Ugbome provided no
corroboration for her allegations, the IJ failed to take the second step in the corroboration
analysis – assessing whether “the applicant has [in fact] provided material corroborating
the relevant facts.” This court has repeatedly held that if the IJ (or BIA) fails to conduct
this three-part inquiry, a finding regarding the lack of required corroboration must be
vacated and the matter remanded. See Abdulai, 239 F.3d at 555; Mulanga v. Ashcroft,
349 F.3d 123, 138 (3d Cir. 2003); see also Dia, 353 F.3d at 253 (noting IJ's failure to
perform third step in Abdulai inquiry); Tipu v. I.N.S., 20 F.3d 580, 583-86 (3d Cir. 1994)
(in evaluating denial of a request for § 212(c) relief from deportation, noting that
“decision of the BIA may be remanded if it fails adequately to consider the evidence in
the record which favors an applicant,” and remanding where Board “inexplicably
discounted” letter evidence of applicant’s crucial role in assisting sick relative, and failed
to give proper weight to substantial evidence of applicant’s complete rehabilitation,
including letters from minister, probation officer, and two other character witnesses);
Sotto v. I.N.S., 748 F.2d 832, 837 (3d Cir. 1984) (remanding where the BIA failed to
3
The IJ commented in her opinion that the documents themselves were not sufficiently
corroborated, and expressed doubt that Ugbome’s brother-in-law, as well as the family
attorney, could have “firsthand” knowledge of the events. App. at 55.
10
explain why it discredited the sworn affidavit of the applicant, thus frustrating the court’s
ability to review).
Where, as here, the IJ’s holding is essentially that Ugbome failed to provide
corroboration for her claims, more than an aside to the insufficiency of the sworn
affidavits she has in fact provided is necessary for this court’s review. See Toure v.
Att’y Gen., 443 F.3d 310, 325 (3d Cir. 2006) (“[A]s a logical predicate to appellate
review, the BIA must adequately explain the reasons for its decisions[.]”) (internal
citation omitted); Butt v. Gonzales, 429 F.3d 430, 436-37 (3d Cir. 2005) (where IJ simply
generally described certain documents submitted by applicant as unverified and
unauthenticated, court could not uphold IJ’s determination absent further explanation as
to why there was reason to question the authenticity of the documents).
Additionally, we note that the IJ found that Ugbome “failed to establish” that she
could not relocate elsewhere in Nigeria to avoid persecution in relation to her husband’s
activities. A showing of past persecution will give rise to a rebuttable presumption of a
well-founded fear of future persecution, but it is the Government’s burden to rebut this
presumption and demonstrate by a preponderance of the evidence that "the applicant
could reasonably avoid persecution by relocating to another part of his or her country or
that conditions in the applicant's country have changed so as to make his or her fear no
longer reasonable.” Toure, 443 F.3d at 317 (citing Mulanga v. Ashcroft, 349 F.3d 123,
132 (3d Cir. 2003); 8 C.F.R. § 208.13(b)(3)(ii) (“In cases in which the persecutor is a
government or is government-sponsored . . . it shall be presumed that internal relocation
11
would not be reasonable, unless the Service establishes by a preponderance of the
evidence that, under all the circumstances, it would be reasonable for the applicant to
relocate.”).
III.
For the foregoing reasons, we will grant the petition for review. We will vacate
the BIA’s order, and remand this case to the BIA for proceedings consistent with this
opinion.
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