UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

GINETTE TCHAYA, 

Petitioner,

v.  No. 03-1263

JOHN ASHCROFT,

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals.

(A76-925-075)

Argued: June 2, 2004

Decided: August 5, 2004

Before MICHAEL, TRAXLER, and GREGORY, Circuit Judges.

Petition for review denied by unpublished per curiam opinion. 

COUNSEL

ARGUED: David Laundon Cleveland, CATHOLIC CHARITIES,

Washington, D.C., for Petitioner. Barry Pettinato, Office of Immigration Litigation, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent. ON BRIEF: Peter D. Keisler,

Assistant Attorney General, Civil Division, M. Jocelyn Lopez Wright,

Senior Litigation Counsel, Elise M. Faber, Office of Immigration Litigation, Civil Division, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

OPINION

PER CURIAM: 

Ginette Tchaya, a native and citizen of Cameroon, entered the

United States in 1999 on a temporary non-immigrant visa. She overstayed her visa and conceded that she was removable under 8

U.S.C.A. § 1227(a)(1)(B) (West 1999 & Supp. 2004). The immigration judge denied Tchaya’s application for political asylum, withholding of removal, and relief under the United Nations Convention

Against Torture (CAT), and entered an order of removal. The Board

of Immigration Appeals (BIA) dismissed her administrative appeal.

We now deny Tchaya’s petition for review of the BIA’s decision. 

I.

A.

The Immigration and Nationality Act (INA) gives discretionary

authority to the Attorney General to confer asylum on any refugee.

See 8 U.S.C.A. § 1158(a) (West 1999). The INA defines a refugee as

a person unwilling or unable to return to his native country "because

of persecution or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particular social group, or

political opinion." 8 U.S.C.A. § 1101(a)(42)(A) (West 1999). The

"well-founded fear of persecution" standard contains subjective and

objective elements. "An applicant may satisfy the subjective element

by presenting candid, credible, and sincere testimony demonstrating

a genuine fear of persecution." Chen v. INS, 195 F.3d 198, 201 (4th

Cir. 1999) (internal quotation marks omitted). In order to meet the

objective requirement, the applicant must show "specific, concrete

facts" that would lead "a reasonable person in like circumstances [to]

fear persecution." Id. at 202. The applicant, not the government, bears

the burden of proving her refugee status. See 8 C.F.R. § 1208.13(a)

(2004); Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999). 

2 TCHAYA v. ASHCROFT
To qualify for withholding of removal, an applicant must demonstrate by objective evidence "a clear probability of persecution upon

deportation." INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987)

(internal quotation marks omitted). The relief afforded by withholding

of removal is not as broad as asylum. Unlike an asylee, an alien entitled to withholding of removal is not thereby entitled to remain in the

United States; rather, withholding of removal simply prevents the

alien from being removed to the specific country or countries where

it is more likely than not that the persecution will occur. See INS v.

Aguirre-Aguirre, 526 U.S. 415, 419 (1999). The standard for withholding removal is more stringent than for asylum. See Chen, 195

F.3d at 205. Thus, the failure to establish eligibility for asylum necessarily results in the failure to establish eligibility for withholding of

removal. See id. However, if an alien establishes eligibility for withholding of removal, it is a mandatory remedy. See Aguirre-Aguirre,

526 U.S. at 420. 

In implementing Article 3 of the CAT, Congress declared that 

[i]t shall be the policy of the United States not to expel,

extradite, or otherwise effect the involuntary return of any

person to a country in which there are substantial grounds

for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States. 

Omnibus Consol. Approp. Act, Pub. L. No. 105-277, § 2242, 112

Stat. 2681-822 (1998). For purposes of the CAT, torture is defined as

"an extreme form of cruel and inhuman treatment" involving severe

physical or mental pain and suffering. 8 C.F.R. § 208.18(a)(1) & (2)

(2004). Regulations implementing the CAT require that an alien seeking relief under the CAT demonstrate "that it is more likely than not

that he or she would be tortured if returned to the proposed country

of removal." Perinpanathan v. INS, 310 F.3d 594, 599 (8th Cir.

2002); Wang v. Ashcroft, 320 F.3d 130, 133-34 (2d Cir. 2003); see 8

C.F.R. § 208.16 (c)(4)(2004). 

B.

Tchaya based her application for relief from the order of removal

upon three incidents in which she claims to have been detained and

TCHAYA v. ASHCROFT 3
mistreated by the government of Cameroon on account of her political

activity. At her asylum hearing, Tchaya testified that the first of these

incidents occurred in 1991. According to Tchaya, in 1991 she became

involved in the Social Democratic Front (SDF), an opposition party

to the government, but she did not become a formal member until

1997. She testified that in 1991, she was arrested while participating

in an SDF activity and held over night, during which time she was

beaten. Tchaya testified that she sustained injuries, but that she did

not seek medical attention at a hospital for fear of reprisal. 

Tchaya testified that her next arrest occurred during the presidential election in October 1997 while she was attending an SDF rally

against the government. On this occasion, Tchaya was questioned

about her activities, beaten, and released after approximately eight

hours. Tchaya testified that these beatings resulted in wounds on her

knees, feet and back. Tchaya sought medical care from a hospital a

few days after her release, where she was treated and released. 

According to Tchaya’s testimony, the third and final arrest came in

February 1999, upon her return to Cameroon from a vacation in the

United States. Tchaya indicated that, at the end of 1998, she hosted

some meetings for SDF leaders to secretly plan demonstrations

against the government. Government agents entered her home,

Tchaya claimed, and arrested her when they discovered some unused,

written invitations for these SDF meetings. Tchaya testified that she

was detained for three days, during which time she was purportedly

interrogated about her party affiliation, beaten and raped by her captors. Tchaya indicated that family members and friends ultimately

bribed a guard for her release, after which she was examined by a

doctor. 

Tchaya testified that between her first arrest in 1991 and her final

arrest in February 1999, she traveled to the United States as a tourist

on vacation three times — in October 1995, October 1996, and February 1999 — always voluntarily returning to Cameroon instead of

seeking asylum in the United States. Tchaya indicated that she "didn’t

see any reason why [she] should ask for political asylum because at

that time [her] life was not threaten[ed]." J.A. 49. 

Following her February 1999 arrest, Tchaya returned immediately

to the United States. Although she claimed she was fleeing Camer4 TCHAYA v. ASHCROFT
oon, Tchaya did not apply for asylum until November 2000 — well

over one year after entry and three months after the Immigration and

Naturalization Service (INS) served her with a Notice to Appear for

overstaying her visa. 

In support of her application, Tchaya submitted a copy of her 1998

SDF card and a sworn verification from an SDF official that the card

was valid. Tchaya also offered an unsigned, typed statement that was

purportedly from her sister. The document provided some corroboration for Tchaya’s claim that she was active in the SDF, that she was

arrested for engaging in anti-government activities, that her last arrest

occurred after returning from the United States, and that the family

bribed officials to secure Tchaya’s release. The document did not

mention the alleged rape or the necessity for medical care after

release. 

Tchaya also submitted government medical forms in support of her

claim. She was examined in October 1997 for injuries received by

government forces, resulting in "serious injuries on the knee" and "hematomas on the back." J.A. 149. She was also examined in February

1999 after the alleged rape. The examining physician indicated that

Tchaya "declared that she was physically abused" by the government

and exhibited "bruises and ecchymosis caused by a sharp object,

along with contusions on the entire body" as well as "[d]ryness of the

mucous membrane and skin due to dehydration." J.A. 147. The doctor

noted that Tchaya "also stated that she was sexually abused." J.A.

147. Tchaya testified that, even as of the time of the hearing, she was

suffering nightmares from her traumatic arrest and that she was living

with a friend of her sister. Although this friend was supposedly aware

of the nightmares, she did not appear to testify. Tchaya had not sought

counseling to deal with the apparent trauma of her last arrest. 

Finally, Tchaya presented the testimony of a political asylee from

Cameroon who testified that he was an officer and active member 

for the SDF in North America. He testified that Tchaya attended SDF

rallies in the United States. However, the purported SDF official did

not produce any identification showing that he was in fact a member

of the SDF. 

TCHAYA v. ASHCROFT 5
C.

The immigration judge rendered an oral decision, concluding that

Tchaya, who based her claim on three separate arrests by government

forces, failed to establish past persecution or a well-founded fear of

persecution. The immigration judge pointed to the fact that Tchaya

traveled to the United States after each of her first two arrests, did not

seek asylum, and voluntarily returned to Cameroon after each visit.

Even after the third arrest, when the rape allegedly occurred, Tchaya

did not seek asylum for nearly two years after arriving in the United

States. 

The immigration judge noted several other factors that undercut

Tchaya’s allegations of abuse while under arrest. For example, the

immigration judge noted that the document purporting to be a letter

from Tchaya’s sister did not reference the alleged rape or any severe

physical abuse at all during Tchaya’s last arrest. With respect to the

medical report, the immigration judge observed that the doctor’s

statement merely repeated Tchaya’s own statement that she had been

sexually abused; it did not indicate (or negate) sexual abuse based on

the physical examination. The doctor also made no mention of vaginal and anal tears that Tchaya claimed to have suffered. The immigration judge concluded that there was insufficient evidence to

corroborate Tchaya’s story of sexual abuse in connection with her

final arrest before coming to the United States. In sum, the judge concluded that Tchaya simply failed to carry her burden of establishing

eligibility for asylum, withholding of removal or relief under the

CAT. 

Tchaya appealed the immigration judge’s decision to the BIA. The

BIA dismissed the appeal in summary fashion, concluding that "[t]he

Immigration Judge’s decision accurately sets forth the facts asserted

by the respondent . . . in support of her applications for relief and correctly concludes that the respondent has failed to establish persecution

or a well-founded fear of future persecution on account of one of the

five [statutory] grounds." J.A. 280. 

II.

Our review of an administrative decision to deny asylum is limited.

A determination of eligibility for asylum or withholding of removal

6 TCHAYA v. ASHCROFT
is conclusive "if supported by reasonable, substantial, and probative

evidence on the record considered as a whole." INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992) (internal quotation marks omitted).

"[A]dministrative findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary." 8

U.S.C.A. § 1252(b)(4)(B) (West 1999). Thus, this court will reverse

the denial of an asylum application only if the evidence "was so compelling that no reasonable fact finder could fail to find the requisite

fear of persecution." Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir.

2002) (internal quotation marks omitted). Although this court ordinarily applies this standard to the order of the BIA instead of the immigration judge, we will treat an order of the immigration judge as

essentially that of the BIA where the BIA relies on the reasoning of

the immigration judge in a summary affirmance. See GandarillasZambrana v. BIA, 44 F.3d 1251, 1255 (4th Cir. 1995); see also Chen

v. INS, 87 F.3d 5, 8 n.3 (1st Cir. 1996) ("Where . . . the Board adopts

the findings and conclusions of the IJ, the IJ’s rescript serves de facto

as the Board’s articulation of its ratio decidendi."). Because the BIA

summarily affirmed the decision of the immigration judge, we apply

our standards of review to the oral decision rendered by the immigration judge. 

Tchaya argues that the immigration judge’s factual determination

that she failed to establish past persecution or a well-founded fear of

future persecution was erroneous. Specifically, Tchaya claims that the

immigration judge was required to accept her testimony as true

because the immigration judge did not make an explicit adverse credibility determination. Thus, contends Tchaya, the immigration judge

had no basis for requiring additional corroboration of Tchaya’s testimony about the prison abuse she suffered. We disagree. 

Credibility findings are reviewed for substantial evidence, but a

factfinder who rejects an applicant’s testimony on credibility grounds

"should offer a specific, cogent reason for his disbelief." Figeroa v.

INS, 886 F.2d 76, 78 (4th Cir. 1989) (internal quotation marks and

alterations omitted). The relevant regulations provide that the alien

does not necessarily need to corroborate his testimony in order to

carry his burden of proving eligibility for asylum: "The testimony of

the applicant, if credible, may be sufficient to sustain the burden of

proof without corroboration." 8 C.F.R. § 1208.13(a) (emphasis

TCHAYA v. ASHCROFT 7
added). Citing this regulation, Tchaya suggests that in the absence of

an explicit factual finding by the immigration judge that the alien’s

testimony was not credible, we must accept the alien’s testimony as

true — meaning corroboration of the facts testified to cannot be

required. The Ninth Circuit indeed follows such an approach. See

Hartooni v. INS, 21 F.3d 336, 342 (9th Cir. 1994); see also Ladha v.

INS, 215 F.3d 889, 901 n.12 (9th Cir. 2000). 

We find no support in the regulations or our decisions for the proposition that an alien’s testimony must be taken as true unless the

immigration judge explicitly states that he does not find the testimony

to be credible. See Disu v. Ashcroft, 338 F.3d 13, 16 (1st Cir. 2003)

(affirming denial of asylum where "IJ did not explicitly say that [the

alien] lacked credibility but plainly did doubt his testimony"); Abdulai

v. Ashcroft, 239 F.3d 542, 551 n.6 (3d Cir. 2001) (noting that the

Third Circuit does not follow such a rule). It is clear that the immigration judge implicitly found Tchaya’s testimony to lack credibility and

provided "specific, cogent" reasons for questioning her credibility.

Figeroa, 886 F.2d at 78. The immigration judge questioned the

claimed severity of her mistreatment in jail in light of the fact that

Tchaya vacationed in the United States and voluntarily returned to

Cameroon without seeking asylum three separate times after her first

two arrests; that she did not seek asylum quickly upon her final entry

into the United States, but instead waited eighteen months to do so;

that Tchaya’s examining doctor did not provide any independent

medical verification of the extremely severe injuries claimed by

Tchaya, such as vaginal and anal tearing; and that Tchaya’s sister provided a letter stating that Tchaya had been arrested in February 1999,

but omitting any mention of the alleged rape. 

Furthermore, even if we assumed that Tchaya’s testimony was generally credible, that does not necessarily lead to the conclusion that

she has established a well-founded fear of persecution without the

need for corroboration. Indeed, such an argument runs counter to the

BIA’s interpretation of its own regulations. The BIA has interpreted

8 C.F.R. § 1208.13 to mean that "where it is reasonable to expect corroborating evidence for certain alleged facts pertaining to the specifics of an applicant’s claim, such evidence should be provided." In re

S-M-J-, 21 I. & N. Dec. 722, 725-26 (BIA 1997) (en banc); see

Kayembe v. Ashcroft, 334 F.3d 231, 238 (3d Cir. 2003) (approving of

8 TCHAYA v. ASHCROFT
BIA’s interpretation); Abdulai, 239 F.3d at 554 (same). Tchaya challenges neither the regulation itself nor the BIA’s interpretation of it.

In this case, because Tchaya in fact provided some corroborative evidence, it was reasonable for the immigration judge to expect it.

Tchaya’s problem was that her evidence actually undermined rather

than bolstered her claim regarding the extent of her mistreatment in

February 1999. 

We conclude that substantial evidence supports the immigration

judge’s denial of asylum. Viewing the record as a whole, we cannot

say that the evidence that Tchaya was unable or unwilling to return

to her country because of a well-founded fear of persecution "was so

compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84. In addition to the insufficient corroboration of Tchaya’s alleged

mistreatment, Tchaya failed to seek asylum even after arrests that

included ostensibly abusive treatment, and even upon her last entry

into the United States, Tchaya failed to seek asylum until it was discovered that she overstayed her visa by more than a year and a half.

Moreover, Tchaya’s sister, in whose house the secret SDF meetings

were supposedly held, remains in Cameroon where she has not been

arrested or bothered by authorities. 

The denial of Tchaya’s request for withholding of removal, the

standard for which is more stringent than for asylum, is likewise supported by substantial evidence. The evidence is not so compelling that

any reasonable factfinder could not fail to find "a clear probability of

persecution," were Tchaya to return to Cameroon. Cardoza-Fonseca,

480 U.S. at 430 (internal quotation marks omitted). Because Tchaya

failed to establish eligibility for asylum, we conclude she has failed

to establish eligibility for withholding of removal. See Chen, 195 F.3d

at 205. 

Finally, we conclude that there is substantial evidence to support

the decision of the immigration judge deny relief pursuant to the

CAT. As discussed above, Tchaya failed to sufficiently corroborate

her claim of past abuse that would qualify as extremely inhumane

physical or mental abuse. See 8 C.F.R. § 208.18(a). Tchaya has failed

to point to evidence demonstrating that it is "more likely than not that

. . . she would be tortured if returned to the proposed country of

TCHAYA v. ASHCROFT 9
removal." Perinpanathan, 310 F.3d at 599. Thus, we reject this claim

as well. 

III.

While her administrative appeal was pending before the BIA,

Tchaya filed with the BIA a motion to reopen based on new evidence.

The new evidence submitted to the BIA included a new medical

report. Unlike the medical report submitted at the hearing, which was

apparently created contemporaneously with Tchaya’s release from jail

in February 1999, this new report was created on May 8, 2001, after

the immigration judge denied Tchaya’s claim and after Tchaya realized her original medical report was not sufficiently convincing to the

immigration judge. Even so, the new report still lacked medical verification of her claim that she was raped, merely repeating the allegations as recounted by Tchaya. Tchaya also submitted an affidavit

from a social worker, also dated after the asylum hearing, indicating,

based on an interview during which Tchaya told her story, that

Tchaya had symptoms common to those reported by victims of rape

and torture. Finally, she submitted an additional letter from her sister,

which included a purported summons issued in August 2001, also

while Tchaya’s administrative appeal was pending, ordering Tchaya

to appear in the High Court of Douala for unspecified breaches of the

public peace at an undated time. The BIA denied the motion to

reopen, concluding that "the material submitted [does not] warrant[ ]

a grant of the motion, as we find none of the material would alter our

affirmance of the result of the Immigration Judge’s decision." J.A.

280. 

"Motions to reopen immigration proceedings are disfavored, particularly in deportation proceedings, where ‘every delay works to the

advantage of the deportable alien who wishes merely to remain in the

United States.’" Stewart v. INS, 181 F.3d 587, 595 (4th Cir. 1999)

(quoting INS v. Doherty, 502 U.S. 314, 323 (1992)). Thus, our review

of the BIA’s denial of a motion to reopen "is extremely deferential,"

and we will reverse only for an abuse of discretion. Id. In this context,

we must affirm the denial of a motion to reopen unless the BIA

denied it "without a rational explanation," "departed from established

policies," or rested the denial on "an impermissible basis." M.A. v.

INS, 899 F.2d 304, 310 (4th Cir. 1990) (en banc). 

10 TCHAYA v. ASHCROFT
Having reviewed the record and the additional evidence submitted

by Tchaya in support of her motion to reopen the proceedings, we

conclude that the BIA did not abuse its discretion in denying

Tchaya’s motion to reopen. 

IV.

For the foregoing reasons, we deny Tchaya’s petition to review the

BIA’s decision affirming the denial of asylum, withholding of

removal, and relief under the CAT. We further deny Tchaya’s petition

to review the BIA’s denial of her motion to reopen. 

PETITION FOR REVIEW DENIED

TCHAYA v. ASHCROFT 11