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Department of Justice Executive Office for Immigration Review

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Johnson, Maureen J., Esq. 888 17th Street, NW, Suite 310 Washington, DC 20006

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Name: SAMBA, JEAN PIERRE BATCHA

A 088-046-199

Date of this notice: 12/19/2013

Enclosed is a copy of the Board's decision and order in the above-referenced case. Sincerely,

DOYl.JtL ct1/VL)
Donna Carr Chief Clerk

Enclosure
Panel Members: Donovan, Teresa L. Pauley, Roger Wendtland, Linda S.

sct1warzA
Userteam: Docket

For more unpublished BIA decisions, visit www.irac.net/unpublished

Cite as: Jean Pierre Batcha Samba, A088 046 199 (BIA Dec. 19, 2013)

U.S. Department of Justice

Decision of the Board of Immigration Appeals

Executive Office for Immigration Review Falls Church, Virginia File: 20530 Date:

A088 046 199 - Baltimore, MD

oc 1 92013

In re: JEAN PIERRE BATCHA SAMBA IN REMOVAL PROCEEDINGS APPEAL ON BEHALF OF RESPONDENT: CHARGE: Notice: Sec. 237(a)( l)(B), I&N Act [8 U.S.C. 1227(a)(l)(B)] In the United States in violation of law Maureen J. Johnson, Esquire

Immigrant & Refugee Appellate Center | www.irac.net

APPLICATION: Asylum; withholding of removal; Convention Against Torture

The respondent, a native and citizen of Cameroon, timely appeals an Immigration Judge's February 23, 2011, decision denying the respondent's applications for asylum and withholding of removal pursuant to sections 208 and 241(b)(3) of the Immigration and Nationality Act (the "Act"), 8 U.S.C. 1158 and 123 l (b)(3), respectively, but granting his application for protection under the Convention Against Torture pursuant to 8 C.F.R. 1208.1 6(c)(2). The respondent's request for oral argument before this Board is denied. See 8 C.F.R. 1003.l(e). On appeal, the respondent contests only the denial of asylum and withholding of removal under section 24l(b)(3) of the Act. The appeal will be sustained, and the record will be remanded for a required background check. When this case was previously before the Immigration Judge on September 13, 2007, she issued a decision denying the respondent's applications for asylum, withholding of removal under section 24l(b)(3) of the Act, and protection under the Convention Against Torture, based primarily on an adverse credibility finding. The responde11t appealed this decision to the Board. On September 9, 2009, the Board issued a decision remahding the record to the Immigration Judge with instructions that she reassess her adverse credibility finding in light of the concerns set forth in the remand order. Following our remand, the Immigration Judge conducted a new hearing, and issued a new decision again denying the respondent's applications for asylum and withholding of removal under section 241(b)(3) of the Act, but granting the application for protection under the Convention Against Torture. We are satisfied that the Immigration Judge sufficiently addressed our concerns in her latest decision, such that this matter is now properly before us for our appellate review. In her most recent decision, the Immigration Judge again found the respondent to be not credible-a finding that the respondent contests on appeal (I.J. at 10-11). However, we need not directly address this finding, or the respondent's related arguments on appeal. Notably, the Immigration Judge found that, despite her finding that the respondent lacked credibility, the witnesses, Mr. Jean Claude Nkem-Kong-Nkem-otherwise established that the respondent had evidence of record-to particularly include the credible testimony of one of the respondent's

Cite as: Jean Pierre Batcha Samba, A088 046 199 (BIA Dec. 19, 2013)

A088 046 199

experienced past persecution in Cameroon on account of a protected ground under the Act, to wit: his political opinion (I.J. at 15-16; Tr. at 72-84). In cases where the respondent has demonstrated past persecution, the DHS bears the burden of establishing by a preponderance of the evidence that conditions have fundamentally changed such that he or she no longer has a well-founded fear of persecution in his or her home country, or that he or she could avoid persecution by relocating to another part of the country. 8. C.F.R. 1208.13(b)(l)(i). The Immigration Judge found that the DHS had met its burden of rebutting the presumption, and denied the respondent's application for asylum on that basis. We agree with the respondent's argument on appeal that the Immigration Judge's determination in this regard is legally incorrect (and, to the extent factual, clearly erroneous), and must be reversed. In finding that the DHS had rebutted the presumption of future persecution in this case, the Immigration Judge found that the evidence showed that the respondent did not have a "subjective fear" of returning to Cameroon after having come to the United States, because he voluntarily returned to that country in 2005 (to attend his daughter's funeral) and again in 2006, with no credible indication of any harm befalling him following his return, and did not seek asylum when he travelled to Spain and France (I.J. at 16-17). However, while an applicant's return to a country where he or she was persecuted is a factor to be considered in determining whether the applicant has a subjective fear of persecution upon a future return, we are aware of no case in the Fourth Circuit in which this case arises finding that it alone can demonstrate a lack of subjective fear.

Immigrant & Refugee Appellate Center | www.irac.net

See, e.g., Kone

v.

Holder,

596 F.3d 141, 146 (2d Cir. 2010) (finding that a well-founded

fear is a "subjective fear that is objectively reasonable");

see also Qiao Hua Li v. Gonzales,

405

F.3d 171, 176 (4th Cir. 2005) (stating that "The subjective component can be met through the presentation of candid, credible, and sincere testimony demonstrating a genuine fear of persecution. The subjective fear [must have] some basis in the reality of the circumstances and [be] validated with specific, concrete facts, and it cannot be mere irrational apprehension.") (internal quotation marks and citations omitted); Cir. 2008).

but see Loho

v.

Mukasey,

531 F.3d 1016 (9th

We find that the respondent's two return trips to Cameroon, without more, are

insufficient to demonstrate that the respondent lacks a subjective fear of return to Cameroon, and thus we determine that the DHS has not met its burden of rebutting the presumption of future persecution. We acknowledge that the Immigration Judge alternatively determined that, even if the respondent had established statutory eligibility for asylum, she would deny such relief in the exercise of discretion. Specifically, she found that the respondent did not merit asylum because he "lied in his testimony before the asylum office" and "was dishonest in his testimony before the Court in 2007" (I.J. at 17). assess these findings here. While these findings were part of the Immigration Judge's adverse credibility finding, which we have not addressed, we similarly find it unnecessary to Even if we were to find no clear error in the Immigration Judge's finding that the respondent had made false statements on both occasions, such a finding would be insufficient to deny asylum in the exercise of discretion. This Board has stated that, in light of the unusually harsh consequences which may befall an alien who has established a well-founded fear of persecution, the danger of persecution should generally outweigh all but the most egregious of adverse factors.

Matter of Pu/a,

19 I&N Dec. 467, 47 4 (BIA 1987).

Given the

Immigration Judge's finding of past persecution in this case, as well as her determination, as part of her analysis of the respondent's application for protection under the Convention Against Torture, that "authorities in Cameroon have maintained
an

interest in the respondent even since

Cite as: Jean Pierre Batcha Samba, A088 046 199 (BIA Dec. 19, 2013)

A088 046 199

his departure," and that there he is "an individual who has the clear probability of being the victim of torture if he were required to return" to Cameroon, we find the falsehoods identified by the Immigration Judge to be an insufficiently "egregious" adverse factor to outweigh the danger of persecution in this case. Accordingly, we find the respondent merits asylum in the exercise of discretion. In addition, having found past persecution to exist, we agree that the DHS has not met its burden of rebutting the presumption that the respondent's life or freedom would be threatened in Cameroon, as the relevant regulation contains essentially identical rebuttal requirements to that for asylum. 8 C.F.R. 1208.16(b)(l)(i), (ii). Accordingly, we also find that the respondent has established statutory eligibility for withholding of removal under section 241(b)(3) of the Act. The DHS has not challenged the Immigration Judge's grant of protection under the Convention Against Torture in this case, which we accordingly will not disturb. Accordingly, the following orders will be entered. ORDER: The appeal is sustained.

Immigrant & Refugee Appellate Center | www.irac.net

FURTHER ORDER: Pursuant to 8 C.F.R. 1003.l(d)(6), the record is remanded to the Immigration Judge for the purpose of allowing the Department of Homeland Security the opportunity to complete or update identity, law enforcement, or security investigations or examinations, and further proceedings, if necessary, and for the entry of an order as provided by 8 C.F.R. 1003.47(h).

Cite as: Jean Pierre Batcha Samba, A088 046 199 (BIA Dec. 19, 2013)