UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 04-1679

EVELYN LOKENYE ITOE,

Petitioner,

versus

ALBERTO R. GONZALES, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration

Appeals. (A78-39-925)

Argued: September 19, 2005 Decided: November 16, 2005

Before SHEDD, Circuit Judge, HAMILTON, Senior Circuit Judge, and

Joseph R. GOODWIN, United States District Judge for the Southern

District of West Virginia, sitting by designation.

Petition for review granted by unpublished per curiam opinion.

ARGUED: Danielle L. C. Beach-Oswald, NOTO & OSWALD, Washington,

D.C., for Petitioner. James Eugene Grimes, Jr., UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration Litigation,

Washington, D.C., for Respondent. ON BRIEF: Robert L. Oswald, NOTO

& OSWALD, Washington, D.C., for Petitioner. Peter D. Keisler,

Assistant Attorney General, Donald E. Keener, Deputy Director,

Francis W. Fraser, Senior Litigation Counsel, UNITED STATES

DEPARTMENT OF JUSTICE, Office of Immigration Litigation,

Washington, D.C., for Respondent. 
2

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
3

PER CURIAM:

Evelyn L. Itoe petitions for review of the Board of

Immigration Appeals’ (the Board) affirmance, without opinion, of

the Immigration Judge’s (IJ) denial of her applications for asylum,

withholding of removal, and relief under the United Nations

Convention Against Torture. Because we conclude that the IJ failed

to sufficiently consider Itoe’s positive evidence of her alleged

past torture on account of her political opinion, we grant Itoe’s

petition for review and remand her applications to the Board for

further review.

I.

Itoe, a citizen of Cameroon, alleges that she was an active

member of the Southern Cameroon National Council (SCNC) and was

affiliated with other groups seeking to promote democratic reform

and to establish an independent nation for English speaking people

in southern Cameroon. Itoe claims that she was imprisoned and

tortured for her political activities by Cameroon officials on

three separate occasions. First, she claims that in 1994 she was

arrested by police, detained for twelve hours, and severely beaten

about her entire body with clubs when she refused to provide

information about her political activities. Next, Itoe asserts

that she was arrested again in 1997 following her participation in

a protest against the government. She claims she was imprisoned
4

for ten days and beaten with belts over her entire body each day of

her captivity. Last, Itoe alleges that she was arrested in August

2000 and held for seven days for protesting the government’s

detention of one of the main leaders of the SCNC. She asserts that

she was repeatedly beaten while her hands were tied behind her back

and she was suspended by a rope. Itoe also claims that she was

hospitalized after her 1997 and 2000 imprisonments. 

In 1998, Itoe was introduced to and began a relationship by

telephone with Richard Farmer, a United States citizen. Itoe

visited friends in the United States on a visitor’s visa in

February and March 2000, but she did not see Farmer during her

stay. After her final arrest in Cameroon in August 2000, Itoe

returned to the United States and met Farmer in person for the

first time in November 2000. Itoe married Farmer the next month,

and they lived together in Farmer’s home in Ohio. They applied for

adjustment of immigration status for Itoe based on their marriage.

Farmer and Itoe lived together only for a short while before they

separated, and Itoe moved to Georgia to live with friends. 

Farmer and Itoe were scheduled to be interviewed by

immigration officials in late August 2001 relating to their

adjustment of status application. Itoe rejoined Farmer in Ohio

shortly before their scheduled interview. During the interview,

Farmer was questioned separately and admitted that his marriage to
5

Itoe was fraudulent. Since the interview, Farmer and Itoe have not

seen each other.

Two months later, Itoe applied for asylum, withholding of

removal, and protection under the Torture Convention. In support

of her applications, Itoe submitted, among other things, medical

records purporting to substantiate the hospital care she received

for her injuries incurred during her imprisonments in 1997 and

2000, State Department reports describing the activities of the

SCNC and the Cameroon government’s serious abuses of political

freedom, and letters from her mother and friend informing her that

the government was still searching for her and was continuing to

punish and even kill political protestors. 

The IJ denied Itoe’s applications for relief, finding that she

failed to sustain her burden of proof because of her “total lack of

credibility.” J.A. 31. The IJ further concluded that Itoe “was

never arrested or detained on” the three occasions that she claimed

she was severely beaten. J.A. 25. Instead, the IJ determined that

Itoe, “in a desperate attempt to avoid removal from the United

States, has created a set of facts which, if true, would have

accorded the opportunity to be granted asylum.” Id. The Board

affirmed the judgment of the IJ without opinion. Itoe now

petitions for review of the Board’s denial of her applications.
1Itoe asserts that Camara is directly on point, and we agree

that it substantially controls our disposition of this case. The

government failed to even mention Camara in its brief. 

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II. 

Itoe argues that the IJ erroneously ignored much of her

independent evidence showing that she suffered past persecution.

We agree.

Because the Board affirmed the IJ’s ruling without opinion,

the IJ’s decision becomes the final agency decision for purposes of

our review. Khattak v. Ashcroft, 332 F.3d 250, 253 (4th Cir.

2003). Although we grant broad deference to an IJ’s credibility

findings that are supported by substantial evidence, an IJ who

rejects an applicant’s positive evidence because he believes it

lacks credibility should offer a specific and cogent reason for

disbelieving the evidence. Camara v. Ashcroft, 378 F.3d 361, 367

(4th Cir. 2004).1

The Attorney General has the discretion to admit into the

United States an applicant for asylum if the applicant establishes

that she is unwilling to return to her native country because of

past persecution or a well-founded fear of future persecution on

account of, among other things, her political opinion. Id. at 367.

If the asylum applicant establishes the requisite past persecution,

a rebuttable presumption arises that she has a sufficient level of

fear of future persecution. Id. Although an unfavorable

credibility finding will generally defeat an asylum application
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based on a well-founded fear of future persecution, see Rusu v.

INS, 296 F.3d 316, 323 (4th Cir. 2002), a claim based on past

persecution will not necessarily meet the same fate because an

applicant who demonstrates that she suffered past persecution is

presumed to have the requisite level of fear of future persecution.

Camara, 378 F.3d at 369-70; 8 C.F.R. § 208.13(b)(1).

Itoe produced substantial direct and circumstantial evidence

that she suffered past persecution by the Cameroon government on

account of her political activities. The IJ did not address Itoe’s

hospital records, the State Department reports verifying the abuses

by the Cameroon government against political dissenters, the

letters from her mother and friend attesting that the police were

still attempting to find and arrest her, and other evidence

suggesting that Itoe suffered past persecution. Instead, the IJ

determined -- based primarily on his conclusion that Itoe’s

marriage was fraudulent -- that Itoe necessarily lied about her

alleged arrests and torture and that none of the three incidents

actually occurred. 

We conclude that the IJ erred by failing to provide a specific

and cogent reason for discounting Itoe’s positive evidence of her

alleged past persecution. See Camara, 378 F.3d at 370-71 (ruling

that IJ erred by overlooking evidence of past persecution based on

an adverse credibility determination). Although there may be

sufficient evidence supporting the IJ’s finding that Itoe lacked
2

In determining that Itoe’s marriage was fraudulent, the IJ

relied on documents and reports not included in the Joint Appendix.

Thus, we decline to determine whether the IJ’s credibility finding

is supported by substantial evidence.

3In addition to her application for asylum, Itoe’s

applications for withholding of removal and for protection under

the Torture Convention are also remanded for further review. See

Camara, 378 F.3d at 370-72. 

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credibility,2 that finding alone does not adequately address the

specific evidence proffered by Itoe showing that she was persecuted

by the Cameroon government on account of her political beliefs.

III.

Because the IJ erroneously ignored Itoe’s positive evidence of

her past persecution, we grant Itoe’s petition for review and

remand her applications3

 to the Board for reassignment to a

different IJ for further review. See Camara, 378 F.3d at 372. 

 

PETITION FOR REVIEW GRANTED