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Ogayonne v. Mukasey

June 18, 2008

JEANNE N. T. OGAYONNE, PETITIONER,
v.
MICHAEL B. MUKASEY, ATTORNEY GENERAL OF THE UNITED STATES,*FN1 RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A98-131-188.

The opinion of the court was delivered by: Williams, Circuit Judge.

ARGUED OCTOBER 29, 2007

Before BAUER, RIPPLE, and WILLIAMS, Circuit Judges.

The petitioner in this case, Jeanne Nadia Tambo Ogayonne, a native of the Central African Republic ("CAR"), seeks asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). She claims she will be persecuted or killed if she returns to the CAR, but we reject Ogayonne's petition for asylum because we lack jurisdiction over this claim. As the immigration judge ("IJ") and the Board of Immigration Appeals ("BIA") concluded, Ogayonne's filing was untimely and not justified by extraordinary circumstances. We also conclude that there was sufficient evidence to justify the denial of withholding of removal and relief under the CAT. Accordingly, we deny Ogayonne's petition for review.

I. BACKGROUND

The Central African Republic is a former French colony in the heart of Africa, surrounded by Chad, Sudan, the Democratic Republic of the Congo, the Republic of the Congo, and Cameroon. It has a population of about 4.4 million people and is slightly smaller than Texas.

By all accounts, the CAR has been a politically turbulent place ever since it gained independence in 1960. The country has experienced a series of military coups and dictatorships, including one led by General André Kolingba in 1981. Although General Kolingba lost power after the country held elections in 1993, he attempted another coup in May 2001, this time against President Ange-Félix Patassé. The Patassé regime violently suppressed the coup attempt, and Kolingba and his followers were sentenced to death in absentia. Kolingba fled to Uganda, and many members of Kolingba's tribe, the Yakoma, were killed.

Jeanne Ogayonne was born on April 26, 1984, in the CAR. Although Ogayonne admits she has never met André Kolingba, she claims to be his sister-in-law. Like Kolingba, Ogayonne and her family belong to the Yakoma tribe, which makes up about 3% of the CAR population. They are all also members of the Central African Democratic Party, a.k.a., Rally for Democracy.

Although Ogayonne does not claim to have suffered from violence or persecution while in the CAR, her parents were not so lucky. Ogayonne's father René Félix died in 1985, purportedly from being poisoned after a political meeting. Ogayonne's mother died of a blood disease in 1997 because she was unable to get treatment due to the politically unstable situation in the CAR.

On October 30, 2000, when she was sixteen years old, Ogayonne came to the United States on a student visa that permitted her to attend the Dayton Christian School in Dayton, Ohio. Later, she moved with her brother and his family to attend Richmond High School, a public school in Richmond, Indiana. Apparently, Ogayonne did not know that her visa did not allow her to change schools.

In February 2002, the director at Richmond High School told Ogayonne's brother that Ogayonne had to go either to a private school or to college to renew her visa. Ogayonne completed her junior year at Richmond in May 2002 and explored the possibility of going to college. In January 2003, she talked to personnel at Indiana University-Purdue University Indianapolis ("IUPUI"), who told her it would be impossible for her to renew her visa because it had expired six months earlier.

Following Kolingba's failed coup, in which members of Ogayonne's family were killed, Ogayonne decided not to return to the CAR and applied for asylum in December 2003. The United States Citizen and Immigration Services ("USCIS") returned her application as incomplete on three occasions. Her application was finally accepted on April 14, 2004. On about May 17, 2004, the Department of Homeland Security issued a Notice to Appear, alleging that Ogayonne could be removed from the country for not attending the school indicated on her visa. In pleadings submitted on June 3, 2004, Ogayonne conceded her removability and stated she intended to pursue applications for asylum and related relief, or alternatively, voluntary departure.

On May 11, 2005, an IJ held a hearing on Ogayonne's various applications for relief. During the hearing, Ogayonne testified that because of her relation to André Kolingba, she was afraid of being raped, detained, or killed if she returned to the CAR. Indeed, she stated that her three sisters had sought refugee status elsewhere. Ogayonne also introduced a letter from her sister Sophie, a refugee in Senegal at the time, which stated that although Sophie had not obtained any "official paperwork or marriage license," she was a traditional "second wife" of André Kolingba. Additionally, Ogayonne introduced an article indicating that there had been an assassination attempt on Kolingba's life two months before the hearing. The IJ considered letters submitted by Ogayonne's other siblings and other evidence indicating that the CAR was a dangerous place prone to chronic instability.

The IJ also introduced into evidence several documents from his own Internet research. The documents included a March 14, 2005, article from BBC News entitled "Results due in landmark CAR vote," a 2005 Amnesty International document describing events in the CAR, and three articles from the United Nations Office for the Coordination of Humanitarian Affairs. The documents stated that Kolingba had apologized for his role in the failed coup against Patassé; that Kolingba and other backers of the coup had been granted amnesty and had their death sentences lifted by current President François Bozizé (who had overthrown Patassé in 2003); that Kolingba had returned to the CAR with 800 soldiers; and that he had run a public campaign for president. Neither Ogayonne's counsel nor the government objected to the introduction of these documents. The IJ also questioned Ogayonne about the information in these documents and gave Ogayonne's counsel an opportunity (which he declined) to ask questions about the documents.

Later that day, the IJ issued an oral decision denying Ogayonne's applications for asylum, withholding of removal, and protection under the CAT, and granting her request for voluntary departure. After Ogayonne filed a timely notice of appeal, the BIA affirmed the IJ's decision ...


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