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Kadia v. Holder

February 20, 2009

LYNDA E. KADIA, PETITIONER,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL OF THE UNITED STATES, RESPONDENT.



Petition for Review of an Order of the Board of Immigration Appeals. No. A99-028-214.

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

ARGUED SEPTEMBER 4, 2008

Before MANION, WOOD, and TINDER, Circuit Judges.

Lynda E. Kadia, a native and citizen of Cameroon, sought asylum, withholding of removal and relief under the Convention Against Torture ("CAT"). The Immigration Judge ("IJ") denied her petitions, finding that she failed to show past persecution or a well-founded fear of future persecution within the meaning of the Immigration and Nationality Act. Kadia appealed to the Board of Immigration Appeals ("BIA"), and the BIA affirmed. Kadia then petitioned this court for review of the BIA's decision. For the reasons that follow, we grant her petition, vacate the BIA's order and remand for further proceedings consistent with this opinion.

DISCUSSION

Kadia claims that she suffered persecution by the Cameroon anti-gang police who believed she held subversive political opinions. At the hearing before the IJ, Kadia testified as follows: On December 10, 2006, she heard a knock at her apartment door. When she opened the door, two men entered. They told her that she was under arrest and showed her an arrest warrant with her name on it. The men were not in uniform, but in civilian attire. Kadia asked them to identify themselves, and one produced a badge, which indicated to her that they were members of the Cameroon anti-gang or special police force. They arrested her and drove for three hours to an unfamiliar location and took her inside a building. Kadia asked the men what she had done, and they said she was a spy. They accused her of going to America to give away their country's military secrets, being a member of the opposition party, Southern Cameroon National Council ("SCNC"), which was planning to overthrow the government, supporting a university strike and sending arms to her village. They also mentioned a tribal chieftaincy problem between her uncle and her brother. They beat her and whipped her for about thirty minutes.

According to Kadia, she was locked in a room without windows where she was kept for eighteen days. She was given bread, water and bananas. During that time she was beaten and raped. Kadia, who was pregnant, began having contractions, lower abdominal pain and bleeding. After some period of time, her captors took her to the Biyansi district hospital, where she was admitted and had a miscarriage. After two days in the hospital, she escaped.

Kadia was a police officer, but she did not tell her superior officers what had happened because she was too frightened. Nor did she return to work after the ordeal. Instead, Kadia was in hiding from the time of her escape from the hospital until March 2, 2007, when she left Cameroon. She had planned to leave Cameroon in February. She changed her plans, however, because her uncle told her that people had been to her house looking for her and that they might still be searching for her, so she should wait until tensions died down.

The IJ denied Kadia's claims on two grounds. First, he concluded that she "failed to establish the underlying facts of her claim by the preponderance of credible, probative evidence. In other words, this Court does not believe that [her] story is entirely credible." A.R. at 82; see also id. at 93 ("[T]he application must be denied because the respondent has failed to meet her burden of proof."). The IJ also denied Kadia's claim based on his finding that she "failed to show that the harm she suffered constitutes persecution" on account of a protected ground. Id. at 82; see also id. at 93-94. He explained:

[T]his Court does not believe that the respondent has shown persecution on account of an imputed political opinion or that the government of Cameroon is unwilling or unable to protect her from the threats she received from her uncle. [Kadia testified her uncle had threatened to kill her in relation to the chieftaincy dispute.] The respondent's testimony was too weak to conclude that her detention in December 2006 was legitimate or at the behest or acquiescence of a legitimate government force. The respondent's inconsistent testimony, [and] the fact that she never sought help from her superiors in the police concerning the incident raises serious doubt that the harm she suffered, if true, was on account of an imputed political opinion and not a tribal issue. Thus, for this alternative reason, I find the respondent's application could not be granted.

Id. at 94 (emphases added).

Kadia appealed to the BIA, challenging both grounds for the IJ's decision. The BIA affirmed, stating: "We adopt and affirm the decision of the Immigration Judge with the following additions." Id. at 2. The BIA said:

We agree with the Immigration Judge, insofar as he found the respondent failed to meet her burden of establishing eligibility for asylum, withholding of removal and protection under the CAT, as the evidence on the record failed to sufficiently establish that the respondent was persecuted or would more likely than not be persecuted on account of a protected ground, or tortured were she to return to Cameroon. As such, we find that the respondent has failed to meet her burden of establishing eligibility for asylum, withholding of removal and protection under the CAT. As we have found that the respondent failed to establish persecution on ...


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