Ndonyi, Pauline v. Holder, Eric H. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-3196
P AULINE N DONYI,
Petitioner,
v.
M ICHAEL B. M UKASEY, Attorney General
of the United States,
Respondent.
____________
Petition for Review of an Order of the
Board of Immigration Appeals.
No. A78-674-466.
____________
A RGUED JUNE 5, 2008—D ECIDED S EPTEMBER 2, 2008
____________
Before P OSNER, K ANNE, and S YKES, Circuit Judges.
K ANNE, Circuit Judge. Pauline Ndonyi, a native and
citizen of Cameroon, petitions for review of an order of
removal entered by Immigration Judge Jennie L.
Giambastiani (IJ), which became final when the Board of
Immigration Appeals (BIA) dismissed Ndonyi’s appeal.
The IJ and the BIA both concluded that the harsh treat-
ment Ndonyi suffered in Cameroon was not on account
2 No. 07-3196
of her political, religious, or social affiliations, and denied
her application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
Because the IJ and the BIA failed to properly analyze the
nexus between the persecution faced by Ndonyi and her
political and religious beliefs, we grant the petition for
review and remand the case for further proceedings.
I. H ISTORY
In May 2000, Pauline Ndonyi entered the United States
at Detroit, Michigan, by crossing the border in a Canadian
family’s car. The agent at the border station checked only
the driver’s passport, and waived the car through the
border; as a result, Ndonyi entered the United States
undetected. In December 2000, Ndonyi, who was not
yet in removal proceedings, filed an application for
asylum, withholding of removal, and CAT protection,
because she claimed to have suffered persecution as a
result of her political activities and her father’s leadership
in the Cameroon Baptist Convention (“CBC”), a Baptist
Christian organization. Ndonyi’s application detailed
that “[i]n January 1999, [she] was tortured and raped by
the government police and military for expressing [her]
political opinion.” The application also stated that “in
September 1999, [she] was forced to watch [her] father
being tortured for his involvement with the Church,” and
that “[she] and [her] mother both were tortured for
trying to come to his defense.” Ndonyi’s application
claimed that, based on her past experience, she feared
being “tortured and killed” if she returned to Cameroon.
No. 07-3196 3
An asylum officer interviewed Ndonyi, see 8 C.F.R.
§ 1208.9, and after determining that she was inadmissible,
the officer referred Ndonyi’s application to the Executive
Office of Immigration Review, see id. § 1208.14(c)(1). The
government then initiated removal proceedings against
Ndonyi in early February 2001 for being illegally present
in the United States. See 8 U.S.C. § 1182(a)(6)(A)(i).
In September 2002, Ndonyi appeared with counsel at a
hearing before the IJ. Ndonyi, a native English speaker,
testified that she is a member of the Kom tribal group,
an ethnic group located in the English-speaking
northwest province of Cameroon. Ndonyi explained that
French and English are the two official languages of
Cameroon, but that French is the more prevalent
language and English speakers, or “Anglophones,” are
often treated as second-class citizens.
Ndonyi stated that for two years, beginning in 1997, she
attended the University of Yaoundé (“University”), which
is located in a French-speaking part of the country. Accord-
ing to Ndonyi, the University discriminated against its
Anglophone students by omitting their names from
student lists; barring them from participation in sports
and extracurricular activities; relegating them to dirty,
substandard housing; and neglecting to grade their aca-
demic papers or record their course grades—which
resulted in the students failing to receive proper credit
for courses they completed and prevented their advance-
ment to higher grade levels. In response to the University’s
discriminatory policies, English-speaking students
formed the Northwest Students Association (“NSA”), an
4 No. 07-3196
organization of a few hundred members that attempted
to vindicate the interests of the school’s Anglophone
students by conducting peaceful demonstrations, boycotts
of classes, and strikes targeted at school administrators.
Although the NSA regularly posted fliers and engaged
in protests during Ndonyi’s two years at the University,
the school administration did not permit the NSA to
function in the school, so members met secretly,
and their actions were met with resistance from school
officials.
Ndonyi joined and actively participated in the NSA
while at the University. Ndonyi testified that in mid-
January 1999, she and other NSA members engaged in a
peaceful “strike” in front of the University’s administra-
tion building when school administrators called the
police. The police arrived in trucks, and were armed
with guns and clubs. Ndonyi explained that the police
told the students that the students were disturbing the
peace, and that the police were going to “teach them a
lesson” for their disruptive behavior. The police beat
the students with the clubs and pushed the students
into the trucks.
Ndonyi recounted how the police then took the students
to the police station, where they separated the male
students from the female students. Ndonyi and the other
female students were forced into a “nasty looking” cell.
Police officers entered the cell, and kicked and beat
Ndonyi and the other female students with clubs. During
this incident, two officers held her down while other
officers took turns raping her. The other girls in the room
No. 07-3196 5
were also raped by the police. The students were held
overnight and released the next morning without being
charged with any offense. N d o n y i t e s t ifie d t h at u p o n
her release from the prison, she went to the hospital to
obtain treatment for her injuries, but did not report the
episode to other authorities. A close friend of Ndonyi’s,
Rosalyina Disango, died as a result of the incident. Ndonyi
became angry when Rosalyina’s death was misreported
as a suicide, and as a result, Ndonyi attempted to
contact members of the press to have the true story of her
friend’s death published. The government discovered
Ndonyi’s efforts to contact the press and summoned her
to the police station in late January 1999. Ndonyi did not
report to the station and instead fled 420 miles to her
home province.
Ndonyi explained that upon arriving in the northwest
province, she did not go directly to her parents’ home in
Mabingo, but instead stopped in another town 30 miles
away because “the situation at home . . . was also bad.”
Since 1994, there had been hostility toward her family
in her home province because her father was the chair-
man of the CBC. Ndonyi’s father and her family faced
backlash after her father refused to “break away” from the
church and join a splinter group—the Cameroon
National Baptist Christian Convention (“CNBC”), which
objected to how the CBC spent church funds. The CBC and
CNBC members attended the same church, which led to
social hostilities directed at CBC members—including
name-calling, shunning, and stone throwing. Ndonyi’s
father’s attempt to inform the authorities about the op-
pressive actions of CNBC members fell on deaf ears
because the authorities were affiliated with the CNBC.
6 No. 07-3196
After a few weeks in the nearby village, Ndonyi re-
turned to her parents’ home. Ndonyi’s initial hesitation
to returning home proved warranted—from February until
September 1999, her family was under de facto house
arrest: “[W]e couldn’t go out . . . we were being stoned,
called names. They wouldn’t . . . even interact with us. So
basically we just stay[ed] home.” Ndonyi also detailed
that CNBC members left letters tacked to her family’s
front gate threatening to burn down their home because
of her father’s continued allegiance to the CBC.
The efforts by Ndonyi’s father to publicize the family’s
plight exacerbated the situation. In early September 1999,
Ndonyi’s father was arrested for writing a letter to gov-
ernment officials in the Cameroonian Senate, discussing
how the local government supported the CNBC instead
of neutrally resolving the dispute between the two
Baptist sects. The letter brought no response; Ndonyi
speculated that the politicians were silenced because the
political landscape was dominated by French speakers,
who advanced their own agendas and causes. The local
officials branded Ndonyi’s father a “traitor” and a trouble-
maker, and arrested him for going over their heads to the
higher authorities.
Two weeks later, the entire Ndonyi family, along with
other CBC members, was arrested and “locked up” by
uniformed police. The family was taken to a maximum
security prison in Bamenda, where local officials at-
tempted to get Ndonyi’s father and other CBC members
to sign documents that stated they would “stop” opposing
the CNBC. Several CBC members signed the forms and
No. 07-3196 7
were released, but Ndonyi’s father refused to sign, and
the family was detained for two weeks. During the two-
week imprisonment, the police tortured Ndonyi’s father
in front of the entire family—four officers took him out
of his cell, hung him from handcuffs placed around metal
bars on a wall, and then beat his legs and body with clubs.
The officers told the family that this should be a “lesson”
to them. When her father began to pass out, Ndonyi
could no longer stand idly by—she jumped on top of one
of her father’s assailants and was bludgeoned in the
head with the butt of a rifle.
When Ndonyi awoke, she was being treated by one
of her father’s supporters, and was informed that her
family had been released. Ndonyi’s family had returned
to their home in Mabingo, where CNBC members contin-
ued to intimidate and socially censure them and the
other CBC members. Ndonyi explained that her family
returned to Mabingo because it was unlikely that the
English-speaking family could find work or get an educa-
tion in the French-speaking parts of Cameroon. Ndonyi
did not want to witness her family subjected to discrim-
ination in Mabingo, so instead of returning home, she
traveled 60 miles to another town, Baffouse, where she
stayed with her father’s supporters. While in Baffouse,
Ndonyi learned that two military officers had shown
up at her parents’ home and asked for her whereabouts.
When her mother refused to tell the officers where
Ndonyi was, she was badly beaten.
Ndonyi lived in Baffouse for six months when she
decided to leave Cameroon. Ndonyi obtained documenta-
8 No. 07-3196
tion and a fraudulent passport from a friend, and
traveled to Canada on another woman’s business visa.
About one week later, Ndonyi crossed the border into
the United States. Once in the United States, Ndonyi
began attending a nursing program at a technical college
in Madison, Wisconsin. At one point, Ndonyi attempted
to transfer her school credits over from the University of
Yaoundé, but the school had no records of Ndonyi: “[it
was] like I didn’t even exist . . . in the school. They couldn’t
find any records for my name.”
Ndonyi also testified that, in June 2001, she discovered
that her father had passed away under suspicious cir-
cumstances. She explained that her family still faced
persecution from the CNBC and police at the time of her
immigration hearing. And she said that she would not
return to Cameroon for fear of being raped, tortured, or
arrested, because her family no longer has income after
her father’s death, and because she will be a victim of
torture for her support of English-speaking causes.
After Ndonyi completed her testimony on direct exami-
nation, the IJ continued the hearing twice, and ultimately
rescheduled cross-examination for early December 2003.
During the intervening fifteen months, Ndonyi’s counsel
withdrew. As a result, Ndonyi represented herself at the
December 2003 hearing. On cross-examination, the gov-
ernment’s attorney asked Ndonyi about the rallies and
protests she participated in while part of the NSA, and the
number of students involved with the group. Ndonyi
related consistent stories about the January 1999 protest
and her rape and torture in its aftermath, and about her
No. 07-3196 9
family’s membership in the CBC and the December 1999
incident.
However, the government’s attorney also elicited
several numerical estimates from Ndonyi that differed
from those she had testified to more than a year earlier
on direct examination. For example, on cross-examination
Ndonyi estimated that the NSA had only 200 members
(instead of 400), that she participated in five rallies (not
ten), and that only 50 to 100 students protested in
January 1999 (as opposed to 200). Ndonyi explained that
the specific figures she gave might be inaccurate because
she did not pay close attention to details and was
merely estimating.
In addition to Ndonyi’s testimony, the record before
the IJ consisted of, among other things: (1) an affidavit
from an American missionary in Cameroon regarding
Ndonyi’s father’s activities in the CBC; (2) the State Depart-
ment’s 2001 and 2002 Country Reports on Human Rights
Practices in Cameroon; (3) an editorial regarding the
religious conflict that Ndonyi’s father published in a
national newspaper; (4) a medical certificate from
Ndonyi’s hospital visit in January 1999; (5) Ndonyi’s
father’s obituary; and (6) a threatening letter that CNBC
members sent to Ndonyi’s father. The missionary’s affida-
vit stated that “the Ndonyi family suffered more persecu-
tion than most families loyal to the CBC . . . because
Pauline Ndonyi’s father was a leader in the CBC
church . . . and he openly . . . reported the activities of
dissidents to the CBC authority.” The missionary further
explained that Ndonyi’s father’s affiliation with the CBC
10 No. 07-3196
“prevented them from worshipping in their local
church . . ., ostracized them from local civic and religious
functions, and maligned them in public gatherings.” The
State Department reports confirmed that “natives of the
two Anglophone provinces, the Northwest and Southwest
Provinces . . . have suffered disproportionately from
human rights violations committed by the Government
and its security forces.” The reports elaborated that
Anglophones are “largely underrepresented in the
public sector,” and “generally believed that they had
not received their fair share of public goods and services.”
The IJ reviewed the record and rendered an oral
decision on December 8, 2003, the same day that Ndonyi
testified on cross-examination. The IJ first found that
Ndonyi was not credible due to “several discrepancies”
between her testimony on direct examination and her
cross-examination testimony, given more than a year
later. The IJ noted several differences, including the
number of protests Ndonyi claimed to have participated in,
the number of NSA members that Ndonyi cited, the
number of students who participated in the NSA protest
and were arrested in January 1999, and the number of
trucks the police arrived in to arrest the students. The IJ
explained that despite Ndonyi’s confession that she did not
pay close attention to detail, “the numbers [were] signifi-
cant.” The IJ also stated that Ndonyi was not credible
because she had testified “on direct examination . . . that
when she fought with the soldiers who were beating her
father in September of 1999 and she was hit on the head,
she was hospitalized . . . . However, today she testified that
after she was hit on the head, she passed out, [and] did not
require any hospitalization or medical treatment . . . .”
No. 07-3196 11
The IJ next found that Ndonyi’s claims of persecution
were not sufficiently related to her political opinion. “With
regards to the sexual assault, as deplorable and despicable
an act as that was, the respondent has failed to show that
it was on account of her political opinion.” The IJ contin-
ued, “[S]he has failed to establish a nexus that she was
‘singled out on account of her political opinion’ when
she was assaulted and jailed.” The IJ stated that the
protestors may have been jailed for disturbing the peace
or for attempting to break into an administrative office,
and not for protesting.
The IJ also stated that Ndonyi’s treatment in December
1999 while defending her father was unrelated to her
Baptist faith: “I do not find that she was hit because of
her Baptist faith, nor because of her father’s Baptist faith.
She went against a soldier or a policeman and regrettably
bore the brunt of his wrath for interfering while he was
performing his duties.” While the IJ acknowledged that
Ndonyi’s father was singled out because of the dispute
between the CBC and CNBC, the IJ stated, “I can find
no nexus presented by the respondent that would tie her
to persecution on the basis of her father’s affiliation.”
The IJ ultimately concluded that Ndonyi had not estab-
lished past persecution, or a well-founded fear of future
persecution, on account of her political opinion, religion,
or membership in a particular social group, and the IJ
denied Ndonyi’s applications for asylum and with-
holding of removal. The IJ then stated that Ndonyi’s
testimony was insufficient to conclude that she would be
imprisoned and tortured by the Cameroonian govern-
12 No. 07-3196
ment, and denied her request for CAT protection. The IJ
ordered Ndonyi removed to Cameroon.
Ndonyi filed a timely pro se appeal of the IJ’s order
with the BIA in January 2004. In March 2005, the BIA
adopted and affirmed the IJ’s conclusions that Ndonyi had
not testified credibly because the discrepancies identified
by the IJ “adequately place[d] the respondent’s testimony
into question.” In April 2005, Ndonyi petitioned for
review of the BIA’s decision with this court. And in
October 2005, the government filed an unopposed
motion to remand the case to the BIA because the IJ’s
adverse credibility determination was based in part on
her erroneous conclusion that Ndonyi had testified in-
consistently regarding being hospitalized following the
September 1999 incident. We granted the govern-
ment’s motion and remanded the case to the BIA in
November 2005.
Ndonyi retained counsel in May 2007, and in August
2007 the BIA reconsidered the case and issued a new
decision vacating its prior decision, and dismissing
Ndonyi’s appeal. After reconsidering the case, the BIA
determined that it “agree[d] with the [IJ’s] conclusion
that taking [Ndonyi’s] testimony as true, she did not
meet her burden of proof for relief.” The BIA stated that
Ndonyi’s brutal treatment while incarcerated rose to the
level of past persecution, but the BIA found that Ndonyi
did not establish that her “mistreatment was on account
of a political opinion, particular social group, or other
enumerated ground.” “[T]he demonstration was not
political, and they were only protesting the University’s
No. 07-3196 13
discrimination.” The BIA attributed Ndonyi’s treatment
to harsh prison conditions and “circumstance,” rather
than to her political views, her religion, or her father’s
leadership in the CBC. The BIA concluded that “even
accepting that the past events in their totality amounted
to past persecution,” the government rebutted the pre-
sumption of a well-founded fear of future persecution
because Ndonyi could reasonably “relocate away from the
University and her hometown . . . .” The BIA stated, “We
acknowledge her testimony that she will face discrim-
ination . . . and the evidence indicating that Anglophones
have historically had issues in Cameroon . . . . While these
factors are not insignificant, we do not find proof of a
level of hardship which would establish that internal
relocation would be unreasonable.” Ndonyi timely
filed a petition for review of the BIA’s decision with
this court in September 2007.
II. A NALYSIS
Because the BIA adopted and supplemented a portion of
the IJ’s decision, we review that part of the IJ’s decision
along with the additional reasoning provided by the BIA.
See Oryakhil v. Mukasey, 528 F.3d 993, 998 (7th Cir. 2008);
Khan v. Mukasey, 517 F.3d 513, 517 (7th Cir. 2008). We
review the decisions under the “substantial evidence”
standard. Ogayonne v. Mukasey, 530 F.3d 514, 518-19 (7th
Cir. 2008). Under this standard, “[w]e must uphold the
decision to deny relief so long as it is ‘supported by
reasonable, substantial, and probative evidence on the
record considered as a whole.’ ” Oryakhil, 528 F.3d at 998
14 No. 07-3196
(quoting Chatta v. Mukasey, 523 F.3d 748, 751 (7th Cir. 2008),
and Mema v. Gonzales, 474 F.3d 412, 416 (7th Cir. 2007)).
“We will overturn the decision to deny relief ‘only if the
record compels a contrary result.’ ” Id. (quoting Mema, 474
F.3d at 416); see also Ogayonne, 530 F.3d at 518-19.
Ndonyi challenges the denial of her application for
asylum and withholding of removal on several grounds.1
First, Ndonyi asserts that the IJ made an improper
adverse credibility determination before denying her
application. But because the BIA assumed that Ndonyi
was a credible witness when it dismissed her appeal in
October 2007, the IJ’s adverse credibility determination is
irrelevant to our review; we will assume, as the BIA did,
that Ndonyi’s testimony credibly established a fear of
past persecution. See Gonzalez v. INS, 77 F.3d 1015, 1023
(7th Cir. 1996); see also Kayembe v. Ashcroft, 334 F.3d 231,
235 (3d Cir. 2003).
Ndonyi also argues that the IJ and BIA deprived her
of procedural due process under the Fifth Amendment by
refusing to fully consider her evidence, and by misap-
plying the law to her case. However, we have repeatedly
stated that “immigration proceedings that meet statutory
1
Ndonyi has failed to raise her CAT claim in her brief before
this court, and we see no “manifest error” in the immigration
courts’ reasoning on that claim. She has therefore waived
judicial review on her claim for CAT protection. See Haxhiu
v. Mukasey, 519 F.3d 685, 692 (7th Cir. 2008); cf. Oryakhil, 528
F.3d at 997 (finding waiver where petitioner did not raise
claim before the court of appeals or the BIA).
No. 07-3196 15
and regulatory standards comport with due process, and,
as such, aliens are better-served by arguing instead that
immigration proceedings infringed the statutory and
regulatory right to a reasonable opportunity to present
evidence.” Khan, 517 F.3d at 518; see also Hussain v. Keisler,
505 F.3d 779, 781 (7th Cir. 2007); Kadia v. Gonzales, 501
F.3d 817, 824 (7th Cir. 2007). And Ndonyi has not ad-
vanced a colorable challenge to the immigration courts’
evidence-gathering process, but instead argues that they
derived improper inferences from the facts and misapplied
the law in arriving at their asylum determinations. We
will evaluate these arguments as part of Ndonyi’s sub-
stantive challenge to the immigration courts’ denial of
her application for asylum and withholding of removal.
In order to establish her claim for asylum, Ndonyi bears
the burden of proving that she is unable or unwilling
to return to Cameroon because of past persecution or a
well-founded fear of persecution, on account of her race,
religion, political opinion, nationality, or membership
in a particular social group. See Oryakhil, 528 F.3d at 998;
Soumare v. Mukasey, 525 F.3d 547, 552 (7th Cir. 2008); see also
8 U.S.C. § 1101(a)(42)(A); 8 C.F.R. § 1208.13. A request
for withholding of removal seeks relief under the Im-
migration and Nationality Act, “which prohibits the
removal of a person to a country where his ‘life or freedom
would be threatened . . . because of [his] race, religion,
nationality, membership in a particular social group, or
political opinion.’ ” BinRashed v. Gonzales, 502 F.3d 666, 670
(quoting 8 U.S.C. § 1231(b)(3)(A) (alteration in original)).
“To be eligible for withholding of removal, an applicant
16 No. 07-3196
must demonstrate a clear probability of persecution.”
Shmyhelskyy v. Gonzales, 477 F.3d 474, 481 (7th Cir. 2007); see
also INS v. Stevic, 467 U.S. 407, 410 (1984)). The required
showing for withholding of removal is “more stringent”
than an applicant’s burden of proof on an asylum
claim. Shmyhelskyy, 477 F.3d at 481; see also Soumare, 525
F.3d at 552.
In arguing that the BIA and IJ substantively erred by
denying her application for asylum and withholding of
removal, Ndonyi contends that the record established
past persecution and a well-founded fear of persecution
based on her political opinion and religious views. She
writes in her brief, “The record indicates that [she] was
arrested, detained and sexually assaulted as a result of her
participation in an NSA protest, which aimed to end
discrimination against the Anglophone minority.” She
continues, “The record also demonstrates that [she] and
her family suffered persecution because of their Baptist
faith and her father’s CBC membership.”
Through her testimony and corroborating sub-
missions, Ndonyi presented an abundance of evidence
of past abuse. She detailed the facts of multiple arrests
without legitimate cause, several severe beatings, and a
violent rape. These incidents clearly represent a “punish-
ment or . . . infliction of harm . . . that this country does not
recognize as legitimate.” Boci v. Gonzales, 473 F.3d 762, 766
(7th Cir. 2007). Such egregious, repetitive acts of physical
cruelty—including one incident that required Ndonyi to
be hospitalized—clearly rise to the level of past persecu-
tion if they occurred “on account of” Ndonyi’s political
No. 07-3196 17
opinion or religious views. See Tchemkou v. Gonzales, 495
F.3d 875, 791-93 (7th Cir. 2007); Cecaj v. Gonzales, 440 F.3d
897, 899 (7th Cir. 2006). This circuit and several other
circuits have adopted the doctrine of “mixed motives,”
“ ‘which recognizes that an individual may qualify for
asylum if his or her persecutors have more than one
motive as long as one of the motives is specified in the
Immi gration and Nationality Act.’ ” Gjerazi v. Gonzales, 435
F.3d 800, 812 (7th Cir. 2006) (quoting Mohideen v. Gonzales,
416 F.3d 567, 570 (7th Cir. 2005)); see also De Brenner v.
Ashcroft, 388 F.3d 629, 636 (8th Cir. 2004); Lopez-Soto v.
Ashcroft, 383 F.3d 228, 236 (4th Cir. 2004); Girma v. INS, 283
F.3d 664, 667 (5th Cir. 2002); Borja v. INS, 175 F.3d 732,
735-36 (9th Cir. 1999); Chang v. INS, 119 F.3d 1055, 1065
(3d Cir. 1997).
In determining that Ndonyi did not suffer “on account
of” her political opinions regarding Anglophone rights,
the BIA completely ignored the doctrine of mixed
motives—the opinion does not analyze whether Ndonyi’s
oppressors were partially motivated by politics or
religion, and makes no mention of any of our precedent
on the issue. The IJ and the BIA also “failed to consider
the evidence as a whole, as [they were] required to do
by the elementary principles of administrative law.” Cecaj,
440 F.3d at 899. The IJ stated that Ndonyi may have been
jailed for disturbing the peace or for attempting to break
into an administrative office. But this is “radically defi-
cient” reasoning because it utterly fails to consider the
context of Ndonyi’s arrest. See id. The IJ’s curt statement
fails to account for the fact that the protestors “disturbed
the peace,” and supposedly attempted to trespass, be-
18 No. 07-3196
cause they were engaged in a political rally—Ndonyi
was not merely shouting obscenities or engaged in
random criminal acts, but was protesting the discrim-
inatory treatment of Anglophone students at the Univer-
sity. This is especially troubling considering that Ndonyi
needed to prove only that her persecution was partially
motivated by her political opinion. See Gjerazi, 435 F.3d
at 812; Mohideen, 416 F.3d at 570.
Even more surprising is the BIA’s additional reasoning
that “the demonstration was not political, and they were
only protesting the University’s discrimination.” It is
difficult for us to understand how a large group pro-
testing a pattern of discrimination targeted at a specific
minority could be apolitical—to us such a demonstration
epitomizes political speech. Cf. N.A.A.C.P. v. Claiborne
Hardware Co., 458 U.S. 886, 915 (1982) (“[S]peech to
protest racial discrimination is essential political speech
lying at the core of the First Amendment.” (quoting Henry
v. First National Bank of Clarksdale, 595 F.2d 291, 303 (1979))).
The IJ also failed to account for the severity of the
response by the police, who arrived armed, en masse, and
then raped the female students at the prison. An asylum
applicant may prove her claim through circumstantial
evidence. Terezov v. Gonzales, 480 F.3d 558, 564 (7th Cir.
2007); Gjerazi, 435 F.3d at 812. And the severity of the
police’s actions represents strong circumstantial proof of a
political animus. It suggests more than mere “harassment”
or harsh prison conditions, but politically charged brutality
and intimidation.
No. 07-3196 19
Equally troubling are the IJ’s and BIA’s reasoning with
regard to Ndonyi’s prison beating in September 1999. The
IJ’s statement that Ndonyi “went against a soldier or a
policeman and regrettably bore the brunt of his wrath for
interfering while he was performing his duties,” com-
pletely ignores context. The family was rounded up and
arrested, and Ndonyi’s father was tortured in front of
her eyes, because of the family’s affiliation with the CBC.
To focus on the action that directly precipitated the offi-
cer’s response and make no mention of Ndonyi’s presence
in the prison because of her affiliation with the CBC
religious sect is quite disingenuous. Similarly, the BIA’s
determination that the beating occurred as a result of
prison conditions and “circumstance” entirely ignores
the events leading up to the family’s experience in the
prison, as well as the fact that local officials affiliated
with the CNBC.
Thus, we do not believe that the evidence, considered as
a whole, supports the IJ’s or BIA’s determinations
that Ndonyi did not suffer past persecution on account
of an enumerated ground. The BIA ignored two recent
cases on the doctrine of “mixed motives,” and bluntly
asserted that the IJ had correctly reasoned the issue.
The decisions were not supported by substantial evi-
dence and the facts in the record compel a contrary result.
“[O]nce past persecution is shown, the burden
shifts to the government to establish that the alien lacks
a well-founded fear of future persecution.” Cecaj, 440
F.3d at 900; see also 8 C.F.R. § 208.13(b)(1). The IJ did not
adopt this burden-shifting approach because she found
20 No. 07-3196
that Ndonyi was not credible and had not suffered past
persecution. But the BIA stated, in the alternative, that
“even accepting that the past events in their totality
amounted to past persecution on account of an
enumerated ground,” Ndonyi did not have a well-founded
fear of future persecution because Ndonyi remained in
Cameroon for several months without incident and
internal relocation is a plausible option.
“The immigration regulations contemplate two
separate inquiries to determine whether an applicant
could reasonably relocate within his home country:
(1) whether safe relocation is possible, and if so,
(2) whether it would be reasonable to expect the ap-
plicant to safely relocate.” Oryakhil, 528 F.3d at 998; see
also 8 C.F.R. §§ 208.13(b)(2)(ii), 208.13(b)(3)(i). We there-
fore ask whether safe relocation was both (1) possible
and (2) reasonable for Ndonyi, bearing in mind that it is
the government’s burden to establish these facts in this
case. See Oryakhil, 528 F.3d at 998; Cecaj, 440 F.3d at 900.
On this record, it is very difficult for us to discern how
relocation within Cameroon would be either possible or
reasonable for Ndonyi. Ndonyi’s testimony, and the State
Department’s 2001 and 2002 Country Reports on Human
Rights Practices in Cameroon, evince a national
hostility toward Anglophones. And the affidavit from
the missionary corroborated Ndonyi’s testimony
regarding the severe backlash against her family due to
her father’s allegiance with the CBC. Thus, we cannot
say that Ndonyi can safely return to the northwest prov-
ince because she might face backlash there, and it is
No. 07-3196 21
unreasonable to expect her to relocate to another part of the
country: she has no known family anywhere else in
Cameroon, all but one other province is dominated by
French speakers, and Anglophones are relegated to an
inferior class status. See Oryakhil, 528 F.3d at 1000 (“The
immigration regulations set out several factors in deter-
mining whether a relocation is reasonable, including ‘any
ongoing civil strife within the country; administrative,
economic, or judicial infrastructure; geographical limita-
tions; and social and cultural constraints, such as age,
gender, health, and social and familial ties.’ ” (quoting 8
C.F.R. § 208.13(b)(3))). In fact, the reports confirmed that
life would not be easy for Ndonyi even in the Anglophone
parts of Cameroon: “[N]atives of the two Anglophone
provinces, the Northwest and Southwest Provinces . . .
have suffered disproportionately from human rights
violations committed by the Government and its security
forces.”
The government presented no evidence to refute
Ndonyi’s testimony, or the other corroborating evidence
in the record, that suggests that Ndonyi cannot
reasonably relocate within Cameroon. And the BIA did
not specifically address any of Ndonyi’s evidence.
Instead, it appears to have shifted the government’s
burden onto Ndonyi. The BIA stated, “We acknowledge
her testimony that she will face discrimination . . . and
the evidence indicating that Anglophones have
historically had issues in Cameroon . . . . While these
factors are not insignificant, we do not find proof of a
level of hardship which would establish that internal
relocation would be unreasonable.” Therefore, the BIA’s
22 No. 07-3196
alternative holding was both substantively erroneous,
and premised on a legal error. Based on this record, the
government did not rebut the presumption that Ndonyi
has a well-founded fear of persecution if she returns
to Cameroon. See Cecaj, 440 F.3d at 900.
III. C ONCLUSION
We G RANT the petition for review of the order of re-
moval, V ACATE the order of removal, and R EMAND for
further proceedings consistent with this opinion.
9-2-08