Case: 20-60937 Document: 61-1 Page: 1 Date Filed: 08/20/2024
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 20, 2024
No. 20-60937
Lyle W. Cayce
Clerk
Collins Enyong Aben,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A099 314 949
Before Richman, Chief Judge and Ho and Engelhardt, Circuit
Judges.
Priscilla Richman, Chief Judge:
Collins Enyong Aben entered the United States without valid entry
documents and was placed in removal proceedings. He sought asylum,
withholding of removal, and protection under the Convention Against
Torture (CAT). The Immigration Judge (IJ) denied all relief, and the Board
of Immigration Appeals (BIA) dismissed the appeal. We deny the petition
for review as to Aben’s CAT claim. We grant it as to Aben’s asylum and
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withholding of removal claims, vacate the BIA’s opinion, and remand for
further proceedings.
I
Aben is a native and citizen of Cameroon. In 2019, he arrived in the
United States and applied for admission without a valid immigration visa or
other entry document. During his initial interview with a Border Patrol
officer, he stated that he left Cameroon “[b]ecause of fear of torture” and
that he sought asylum. When asked why he did not seek protection from the
Cameroonian government, he stated he “believe[s] they want to hurt me and
kill me.” He asserted that the Cameroonian military threatened to kill him
because, as a nurse, he treated separatist fighters. 1 When asked whether he
had been persecuted because of his political opinions, he answered
affirmatively.
Aben applied for asylum and withholding of removal, indicating that
his application was based on political opinion and membership in several
particular social groups (PSGs): an Anglophone minority, an accused
separatist, someone who treats separatists, and someone from Batibo. Aben
does not claim to be a separatist himself; rather, he claims that the
Cameroonian government imputed that political opinion to him.
We start by recounting the facts, as Aben presents them, of his
persecution in Cameroon. Then we turn to his proceedings in the
immigration courts.
1
These fighters are sometimes called Ambazonia Boys or Amba boys. They will
be referred to here as separatists.
2
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A
The Cameroonian conflict that is the subject of Aben’s applications
can be traced to the early 20th century. France and Britain divided the
territory after seizing it from Germany. In 1960, the French-speaking
(Francophone) section won independence and established Cameroon. A
year later, the English-speaking (Anglophone) section joined the new
country. Despite being a formally bilingual country, the Francophones
dominate the government and “elite circles,” while Anglophones claim they
are marginalized. In 2016 and 2017, Anglophones protested their position,
which prompted a violent response from the Francophone establishment. A
group of Anglophones, referred to here as separatists, began armed attacks
against the Francophone government.
At Aben’s removal hearing, Aben appeared pro se and testified that
he is a Cameroonian Anglophone. He had been working for a hospital in
Njinikom, in the Anglophone part of Cameroon, as a nurse for six years.
Although he never took part in the political demonstrations, he treated
Anglophones who were wounded during the conflict. This prompted the
Francophone military to accuse Aben and other hospital staff of treating
“separatist fighters,” which led to the harassment of and threats to Aben and
his colleagues; beatings of his colleagues; and the arson of a hospital
ambulance.
Aben testified that each time he travelled from Njinikom to Bamenda,
also within Anglophone Cameroon, the military stopped his vehicle because
he was Anglophone. He was removed from the vehicle, instructed to lie
down on the road and to assume stressful positions for up to fifteen to twenty
minutes, and forced to pay a bribe. The stops were not directed at Aben,
individually, however. The military was stopping people in general as they
traveled up and down the road. When asked to produce identification, the
3
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military would determine that Aben was a nurse, would accuse him of
treating separatist fighters and told him: “You Anglo fools[,] you think you
can fight us—we will kill you all one by one.”
Because of these “mounting tensions,” Aben decided to leave his job
as a nurse and flee. On his way to Belo, the military arrested him and held
him at an apartment with approximately thirty other people for three days.
During his interrogation, Aben said he was a farmer instead of nurse because
of his negative experience with the military at the hospital. However, the
military already knew he was a nurse, and they knocked him on the head and
gave him a “very heavy slap.” Aben was “beaten with a stick” and a belt on
his feet, which caused blisters and bruises. The prisoners were also made to
pass their feces and urine around in a bucket. A soldier whom Aben had
treated at the hospital remembered him favorably and helped him escape.
The soldier took Aben outside at gunpoint ostensibly to empty the bucket,
but instead told him to run as fast as he could or he would be killed.
Aben successfully escaped to his uncle’s home in Bamenda, where he
stayed for five months. Because he was afraid to go the hospital, he selftreated his wounds with sodium chloride and betadine, and he took pain
killers and anti-inflammatory drugs. Aben was again arrested when the
military conducted a general raid looking for separatist fighters. The military
broke into his uncle’s home, began hitting Aben on the back with a gun and
kicking him as he was taken to a truck holding more than twenty other
individuals. As the military put Aben in the truck, he was told, “You think
you can fight us.” The truck was attacked, and Aben escaped.
Aben fled to his aunt’s home in Batibo. He stayed inside as “[a] lot of
gun battles” occurred outside, and he feared being arrested. Aben helped a
man who was bleeding. The military learned of Aben’s assistance, which
motivated Aben to flee for Nigeria. Along the way, the military arrested him
4
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again and detained him for three days in a small brick house with more than
twenty men and boys. The military interrogated him, identified him as a
nurse from Batibo, and blamed him for treating separatist fighters. He was
told, “you used the curse on Batibo, you think you can fight the
government,” and “[w]e will kill you [Anglos] one by one.” The military
also told him that if he escaped, he would be found and killed. The military
beat him “all around [his] body, especially on the lower legs and under [his]
feet[],” which caused blisters, sores, inflammation, and pain. One of the
soldiers went to take Aben’s ID card, but another told him to not “bother”
because “[Aben] w[ould] be killed.”
During this detention, other Anglophones were taken out of the room
and not seen again. Aben believed they were killed because of the soldiers’
statements and the fact that he occasionally heard gunshots. He and at least
ten others were able to escape when the camp came under attack by what
Aben presumed were separatist fighters. One escapee was hit by a “stray
bullet” and “died along the way” as they “struggled” through bushes and a
forest to get to a river on the border. Aben was helped by a fisherman, entered
Nigeria and began his migration to the United States.
When asked by the IJ why he did not photograph his injuries or seek
medical attention, Aben testified that he did not know that they would be
useful and that his cell phone was seized by the military. Aben also said that
he was afraid because using a cell phone could get him in trouble. He never
visited a hospital out of fear of the military.
When asked whether he tried to relocate to any other area in
Cameroon, Aben responded that he could not go to his mother’s home in
Yaoundé because it was in Francophone territory and had violent unrest. He
also testified that Cameroon is small, the military is everywhere, and the
military had information about his identification.
5
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B
The IJ denied Aben’s applications. He first held that the ThirdCountry Transit Bar prohibited Aben from applying for asylum because he
did not apply for protection in any of the countries he traversed before
arriving in the United States via the southern border. 2 The IJ doubted the
credibility of Aben’s testimony because Aben failed to provide “any
photographs or any other medical evidence to indicate that [he] had been
harmed while” in Cameroon yet was able to produce evidence that he was a
nurse (his identification card) and because of “two major inconsistencies” in
Aben’s testimony.
However, these two inconsistences between Aben’s testimony at the
hearing and his initial interview with Border Patrol are irrelevant to the
current petition. In his initial interview with a Border Patrol officer, Aben—
confusingly—stated that he had not been physically harmed or arrested in
Cameroon despite later testifying that he had been. Aben countered that he
was experiencing PTSD-related stress during the initial interview with
Border Patrol and that the officer had cut off his complete answer to that
question, telling him to “reserve details for the court.” We need not resolve
this dispute because the BIA did not sustain the IJ’s adverse credibility
finding, assuming instead that Aben’s testimony was credible. We review the
decision of the BIA, not the IJ. 3 Further, the government concedes that the
IJ’s credibility finding is not relevant to this petition. Like the BIA, we will
assume Aben’s testimony is credible for purposes of this appeal.
2
See 8 C.F.R. § 208.13(c)(4) (originally enacted by Asylum Eligibility and
Procedural Modifications,
84 Fed. Reg. 33,829 (July 16, 2019)), revoked by Circumvention
of Lawful Pathways,
88 Fed. Reg. 31,314 (May 16, 2023).
3
See Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013).
6
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The IJ then analyzed the merits of Aben’s claims. He stated that he
would deny the “asylum, withholding and CAT relief” applications even if
he found Aben credible based on his failure to establish past persecution. As
to asylum, the IJ reasoned that Aben was not harmed “with any significant
injuries,” and Aben’s failure to “provide any medical documentation or any
photographs of his injuries” indicates that he did not sustain “serious or life-threatening injuries that would constitute,” under this court’s jurisprudence,
“extreme persecution.” Regarding nexus, the IJ found that Aben “was
accused by government officials of being involved with the separatists
because he was treating [the separatists].” With no elaboration, the IJ
concluded that the actions taken against Aben were not “politically
motivated” but due to his occupation as a nurse. The IJ also determined that
because Aben could not prove past persecution, he was not entitled to a
presumption of a well-founded fear of future persecution.
Regarding Aben’s withholding of removal claim, the IJ held that
because he did not establish eligibility for asylum, he necessarily failed to
establish eligibility for withholding of removal. Finally, the IJ held that Aben
did not meet his burden for relief under CAT because it “does not appear”
that a government official tortured him.
Aben appealed to the BIA. The BIA dismissed his appeal. It first held
that Aben was no longer prohibited from seeking asylum because the ThirdCountry Transit Bar had been enjoined. 4 It then assumed Aben was
“credible for the purpose of adjudication,” choosing to not sustain the IJ’s
credibility finding. It stated that the facts were not in dispute, and evaluated
his claims for asylum, withholding, and protection under CAT.
4
See East Bay Sanctuary Covenant v. Garland, 994 F.3d 962, 987-88 (9th Cir. 2020).
7
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The BIA noted the IJ’s finding that the military’s accusations against
Aben as being involved with separatists was because of his occupation as a
nurse and not because of any political motivations. It further noted that Aben
did “not claim to have suffered serious or life-threatening injuries that would
be characterized as extreme and to constitute persecution.” It agreed with
the IJ that Aben did not establish past persecution, and it noted that Aben
failed to corroborate his experiences or claimed fear of future persecution.
Because Aben failed to address the evidence of policy changes and eased
tensions in Cameroon, the BIA held that his fear of future persecution is not
objectively reasonable. Accordingly, the BIA held that he could not establish
asylum and could therefore not establish withholding of removal. Finally, the
BIA stated that it could “discern no clear error with the [IJ’s] factual
findings” that Aben failed to establish his CAT claim. Aben petitioned this
court for review of the BIA’s decision. 5
II
This court reviews the BIA’s decision and will consider the IJ’s
underlying decision only to the extent it impacted the BIA’s decision. 6
Findings of fact, including the denial of asylum, withholding of removal, and
CAT protection, are reviewed under the substantial evidence standard. 7
Under that standard, this court may not reverse a factual finding unless the
evidence “compels” such a reversal—i.e., the evidence must be “so
compelling that no reasonable factfinder could reach a contrary
conclusion.” 8 It is the petitioner’s burden to demonstrate that the evidence
5
8 U.S.C. § 1252(b)(1).
6
See Sharma, 729 F.3d at 411.
7
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
8
Id.
8
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compels a contrary conclusion. 9 The substantial evidence standard requires
that “the [BIA’s] conclusion be based upon the evidence presented and that
it be substantially reasonable.” 10 “The BIA’s complete failure to address
uncontroverted evidence . . . does not meet this standard,” 11 and we “cannot
[f]ails to address key evidence.’” 12
To be eligible for asylum, an applicant must prove that he is unwilling
or unable to return to his home country “because of persecution or a well-founded fear of persecution on account of race, religion, nationality,
membership in a [PSG], or political opinion.” 13 An alien seeking withholding
of removal must demonstrate a “clear probability of persecution” on one of
the aforementioned grounds, which is a higher standard than the “well-founded fear of persecution” required for asylum. 14
A
Aben argues that the BIA’s determination that he failed to prove past
persecution is not supported by substantial evidence. Persecution “has the
quality of a sustained, systematic effort to target an individual on the basis of
9
Id.
10
Sharma, 729 F.3d at 411 (internal quotation marks and citation omitted).
11
Cf. Inestroza-Antonelli v. Barr, 954 F.3d 813, 818 (5th Cir. 2020) (holding that a
complete failure to address uncontroverted evidence was an abuse of discretion).
12
Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (quoting Cabrera v.
Sessions,
890 F.3d 153, 162 (5th Cir. 2018)) (alteration in original); see also Abdel-Masieh v.
INS,
73 F.3d 579, 585 (5th Cir. 1996) (“While we do not require that the BIA address
evidentiary minutiae or write any lengthy exegesis, its decision must reflect meaningful
consideration of the relevant substantial evidence supporting the alien’s claims.”).
13
8 U.S.C. § 1158(b)(1);
8 U.S.C. § 1101(a)(42)(A); Sharma,
729 F.3d at 411.
14
Revencu v. Sessions, 895 F.3d 396, 402 (5th Cir. 2018) (internal quotation marks
and citations omitted).
9
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a protected ground.” 15 “It is not harassment, intimidation, threats or even
assault”; it “does not encompass all treatment that our society regards as
unfair, unjust, or even unlawful or unconstitutional.” 16 Persecution “is an
extreme concept.” 17 For example, occasional verbal taunts and being hit in
the head with a rock requiring medication to stop the bleeding does not rise
to the level of persecution. 18 Rather, persecution is a “systematic” effort. 19
An “organized, relentless campaign of intimidation, extortion, and murder”
is a “prototypical persecution.” 20 It is a “pattern of sustained pursuit.” 21
Aben was arrested and detained three times; held in unlawful captivity
for a total of six days; slapped, kicked, and knocked in the head; beaten with
a belt and a stick; suffered several lacerations, blisters, sores, and bruises;
threatened with death while held at gunpoint; and told he would be killed if
he did not run fast enough to escape.
The BIA’s determination must be vacated because it fails to account
for the credible death threats that Aben received. Soldiers told Aben that
they would kill him and all the other “Anglo fools . . . one by one.” Soldiers
in his last detainment said they would not “bother” to take his ID because he
would be killed shortly. These were credible threats. Aben witnessed several
15
Gjetani v. Barr, 968 F.3d 393, 397 (5th Cir. 2020) (emphasis omitted).
16
Id. (internal quotation marks and citation omitted).
17
Qorane v. Barr, 919 F.3d 904, 909 (5th Cir. 2019) (citing Arif v. Mukasey,
509
F.3d 677, 680 (5th Cir. 2007) (per curiam)).
18
Eduard v. Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004).
19
Gjetani, 968 F.3d at 397 (emphasis added).
20
Id. at 398.
21
Id.
10
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other detainees escorted out of the building. He never saw them again and
thinks they “were murdered.” The BIA did not address this evidence.
“[W]e cannot affirm a decision that fails to address key evidence.” 22
It is true that death threats alone are not necessarily persecution. 23 But when
accompanied by beatings, those threats cannot be said to be
inconsequential. 24 At the very least, the BIA must address this evidence. 25
The BIA’s determination regarding past persecution must be vacated.
B
The BIA’s determination that Aben did not prove a nexus between his
harms and a protected ground is also not supported by substantial evidence.
To gain asylum on the basis of persecution due to political opinion, an
applicant must show through direct or circumstantial evidence that the
persecutor (1) knew of his political opinion, and (2) has or will likely
persecute him because of it.26 An applicant need not actually hold a protected
political opinion. Instead, the applicant can satisfy the first prong if he can
show that the persecutor imputed a political opinion to him. 27 “The relevant
22
Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021) (internal quotation
marks omitted).
23
See Gjetani, 968 F.3d at 398-99 (holding that several threats related to a one-off
event were not persecution); see also, e.g., Singh v. Barr, 818 F. App’x 331, 332-33 (5th Cir.
2020) (per curiam) (unpublished) (holding that death threats and two beatings did not rise
to the level of persecution).
24
See Gjetani, 968 F.3d at 398-99 (describing death threats, when accompanied by
a bombing, as evidence of persecution).
25
See Arulnanthy, 17 F.4th at 592.
26
See Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002).
27
See Changsheng Du v. Barr, 975 F.3d 444, 447 (5th Cir. 2020).
11
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question is the motivation of the persecutor.” 28 Further, the protected
ground need only be “one central reason” for the persecution. It need not
be the sole reason. 29
The BIA erred by not addressing key evidence. 30 The BIA stated that
the actions taken against Aben were not politically motivated but instead
were taken due to his occupation as a nurse. However, the BIA failed to
address the fact that Aben testified that the military imputed a political
opinion to him because military members chastised him for treating
“separatist fighters,” and told Aben “you [Anglos] think you can fight the
government. We will kill you one by one.” He also testified that as he was
being taken from his uncle’s home, he was told, “[Y]ou think you can fight
us.” Aben did not claim that the military was targeting him because he was
a nurse. Rather he argues that he was perceived to be assisting separatists
and later accused of fighting against the government. The BIA does not
address this evidence.
The government argues that this “is an inference” that the BIA was
not “compelled to accept.” While it is true that the BIA is not required to
accept the applicant’s inferences, the BIA could not ignore this evidence
altogether. 31 The police mentioned Aben’s Anglo heritage on almost every
occasion that they stopped him. Nor is there evidence in the record
suggesting that all nurses were being targeted regardless of political opinion.
There is, however, substantial evidence that the government imputed a
28
Ontunez-Tursios, 303 F.3d at 351.
29
See Carbrera v. Sessions, 890 F.3d 153, 161 (5th Cir. 2018); Matter of S-P-,
21 I&N
Dec. 486, 492 (BIA 1996).
30
See Sealed Petitioner v. Sealed Respondent, 829 F.3d 379, 387 (5th Cir. 2016).
31
See Arulnanthy v. Garland, 17 F.4th 586, 592 (5th Cir. 2021).
12
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political opinion of separatist allegiance or Francophone opposition to Aben
when soldiers claimed—several times—that Aben was “fight[ing them].”
That Aben was a nurse played a role, but as Aben argues, the protected
ground need not be the sole reason for the persecution. It need only be one
central reason, and here, it may be. 32 We vacate the BIA’s determination
regarding nexus.
C
The government urges us to deny Aben’s petition because, it argues,
the BIA did not err regarding its finding that Aben failed to present evidence
to corroborate his claims. 33 On this point too, the BIA failed to address
obvious pieces of evidence.
The BIA and IJ faulted Aben for not documenting his injuries with
pictures or medical records. But Aben stated that the Cameroonian
authorities seized his cellphone and that he was afraid to use one because of
what the authorities would do if they found documentation. He also stated
that he avoided hospitals because of fear. Accordingly, the two means of
documenting his injuries that the IJ faulted Aben for not using appear
unavailable to him based on the record. Neither the IJ nor BIA addressed
how Aben could have “reasonably obtained” corroborating evidence in light
of this. 34 Moreover, Aben did submit some evidence to corroborate his
32
See Sealed Petitioner, 829 F.3d at 387 (remanding for further consideration of the
persecutor’s motive when the BIA and IJ failed to address key evidence of mixed motives);
Matter of S-P-,
21 I&N Dec. at 492.
33
See 8 U.S.C.§ 1158(b)(1)(B)(ii) (“Where the trier of fact determines that the
applicant should provide evidence that corroborates otherwise credible testimony, such
evidence must be provided unless the applicant does not have the evidence and cannot
reasonably obtain the evidence.”).
34
See 8 U.S.C. § 1158(b)(1)(B)(ii).
13
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claims, including affidavits from friends in Cameroon and Nigeria. The BIA
failed to address this evidence. We vacate the BIA’s finding that Aben failed
to present evidence to corroborate his claims. 35
D
An alien who establishes past persecution is entitled to a presumption
of a well-founded fear of future persecution. 36 The government may rebut
this presumption by presenting evidence of changed country conditions such
that the applicant’s life or freedom would not be threatened if he returned. 37
The government submitted country conditions evidence at Aben’s hearing.
The evidence includes news stories detailing peace talks between the
separatists and Francophone leaders, including the grant of “special status”
to the Anglophone regions of Cameroon. It also includes reports of asylees
returning to Anglophone Cameroon and prisoners being released.
The IJ and the BIA found the changed conditions persuasive,
determining that Aben’s fear of persecution as an Anglophone Cameroonian
“[w]as not objectively reasonable in light of the significant change in country
conditions . . . and cannot support a well-founded fear of future persecution
on that basis.” We review this determination for substantial evidence. 38
Here too the BIA erred by not considering evidence in the record that
contradicts its finding. Contradictory evidence is found in the government’s
exhibit the BIA cites in support of its determination that Aben’s well-founded
fear was not objectively reasonable. The exhibit includes information that
35
See Arulnanthy, 17 F.4th at 592; see also Yang v. Holder,
664 F.3d 580, 587 (5th
Cir. 2011).
36
8 C.F.R. § 1208.13(b)(1).
37
Zhu v. Gonzales, 493 F.3d 588, 596-97 (5th Cir. 2007).
38
Id. at 595, 596-97; see also Majd v. Gonzales,
446 F.3d 590, 594 (5th Cir. 2006).
14
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“atrocities have resumed strongly” in Anglophone Cameroon. We vacate
the BIA’s determination because the board did not account for this key
evidence. 39 Additionally, remand will give the BIA an opportunity to address
the most recent country conditions evidence and any effect that the DHS’s
Temporary Protected Status ruling may have. 40
III
We hold that the BIA’s decision as it relates to Aben’s asylum claim
must be vacated. As the BIA denied Aben’s withholding claim because it
determined he was ineligible for asylum, that decision too must be vacated.
We need not and do not reach Aben’s remaining arguments concerning the
BIA and IJ’s treatment of his PSG claims.
IV
In a single paragraph, the BIA found “no clear error” with the IJ’s
findings and conclusions that Aben did not meet his burden to establish that
it is more likely than not that he would be tortured upon his return to
Cameroon. Aben challenges this, but we agree with the government that he
has forfeited any challenge to the BIA’s determination regarding his CAT
claim except that it was not fully deliberated because he has not briefed any
other arguments to this court. 41 Regarding the amount of deliberation the
BIA gave to the IJ’s findings, “[w]e do not require that the BIA address
39
Arulnanthy, 17 F.4th at 592.
40
See Secretary Mayorkas Designates Cameroon for Temporary Protected Status
for 18 Months, Dept. of Homeland Security,
https://www.dhs.gov/news/2022/04/15/secretary-mayorkas-designates-cameroontemporary-protected-status-18-months.
41
Rollins v. Home Depot, 8 F.4th 393, 397 (5th Cir. 2021) (“A party forfeits an
argument . . . by failing to adequately brief [it] on appeal.”).
15
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evidentiary minutiae or write any lengthy exegesis.” 42 The BIA and IJ
satisfied their duties in that regard by referencing the various country
conditions reports and testimonial evidence in the record. 43
…
Aben’s petition for review is GRANTED in part and DENIED in
part. We DENY the petition for review as to Aben’s CAT claim. We
GRANT his petition and VACATE the decision of the BIA as it relates to
Aben’s asylum and withholding claims, and we REMAND for further
proceedings not inconsistent with this opinion.
42
Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996).
43
See id.; see also Gjetani v. Barr, 968 F.3d 393, 399 (5th Cir. 2020) (holding that
referencing expert reports was enough to satisfy the BIA’s burden).
16
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