PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ELA GANDZIAMI-MICKHOU, 

Petitioner,

v.  No. 04-2428

ALBERTO R. GONZALES, Attorney

General,

Respondent. 

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A96-087-201)

Argued: November 30, 2005

Decided: April 17, 2006

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Petition for review denied by published opinion. Judge Shedd wrote

the opinion, in which Judge Wilkinson and Judge King joined. 

COUNSEL

ARGUED: Stacie Lieberman, AMERICAN UNIVERSITY, Washington College of Law, Law Clinic, Washington, D.C., for Petitioner.

Song E. Park, UNITED STATES DEPARTMENT OF JUSTICE,

Office of Immigration Litigation, Washington, D.C., for Respondent.

ON BRIEF: Richard J. Wilson, Supervising Attorney, WASHINGTON COLLEGE OF LAW, International Human Rights Clinic,

Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney
General, Civil Division, M. Jocelyn Lopez Wright, Assistant Director,

Office of Immigration Litigation, Erica A. Franklin, Trial Attorney,

Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,

Washington, D.C., for Respondent.

OPINION

SHEDD, Circuit Judge: 

Ela Gandziami-Mickhou, a native and citizen of the Republic of

Congo, was admitted to the United States in January 2002 as a nonimmigrant student to attend Avila College in Kansas City, Missouri.

After Gandziami-Mickhou failed to return to the college following the

Spring 2002 semester, the Immigration and Naturalization Service

("INS") issued a Notice to Appear, charging her as removable for failing to comply with the conditions of her visa. Gandziami-Mickhou

subsequently applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). An Immigration

Judge ("IJ") denied Gandziami-Mickhou’s applications, concluding

that she failed to meet her burden of proof on each of her claims. The

Board of Immigration Appeals ("BIA") affirmed the IJ’s decision

under its streamlined process of review. Gandziami-Mickhou now

petitions for review of the BIA’s decision, arguing primarily that the

IJ violated our decision in Camara v. Ashcroft, 378 F.3d 361 (4th Cir.

2004), by disregarding corroborating evidence that she submitted in

her application for asylum and withholding of removal. For the reasons that follow, we deny the petition for review. 

I.

Under the Immigration and Nationality Act ("INA"), the Attorney

General has authority to confer asylum on any refugee. 8 U.S.C.

§ 1158(b). To qualify as a refugee, an alien must be unwilling or

unable to return to her 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. § 1101(a)(42)(A). The "well-founded fear of persecution"

standard contains both subjective and objective components. Chen v.

2 GANDZIAMI-MICKHOU v. GONZALES
INS, 195 F.3d 198, 201 (4th Cir. 1999). To satisfy the subjective component, an applicant must present "candid, credible, and sincere testimony demonstrating a genuine fear of persecution." Id. (internal

quotations omitted). The objective component requires "specific, concrete facts that a reasonable person in like circumstances would fear

persecution." Id. at 202. The applicant for asylum bears the ultimate

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

(2004). 

To qualify for withholding of removal, an applicant must demonstrate a "clear probability of persecution." INS v. Stevic, 467 U.S. 407,

430 (1984). This is a more stringent standard than that for asylum.

Chen, 195 F.3d at 205. Unlike the grant of asylum (where an alien is

entitled to remain in the United States), withholding of removal

merely bars the deportation of an alien to a particular country. INS v.

Aguirre-Aguirre, 526 U.S. 415, 419 (1999). Further, while asylum is

discretionary, if an alien establishes eligibility for withholding of

removal, the grant is mandatory. Id. at 420. 

To qualify for protection under the CAT, an applicant must prove

that it is "more likely than not that he or she would be tortured if

removed to the proposed country of removal." 8 C.F.R.

§ 208.16(c)(2). We have concluded that this standard for the CAT is

independent from the standard for determining asylum, and an

adverse credibility finding alone cannot preclude protection under the

CAT. Camara, 378 F.3d at 372. 

For purposes of review of a final order of removal issued under the

streamlined process, the IJ’s reasoning becomes the final BIA determination. Id. at 366. In reviewing the BIA’s decision regarding an

order of removal, whether streamlined or not, we uphold the decision

if it is not "manifestly contrary to law." 8 U.S.C. § 1252(b)(4)(C)

(2004). Further, we give great deference to the factual findings by the

BIA, as those factual findings "are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary." Id.

§ 1252(b)(4)(B). For this reason, the substantial evidence test for

review of the BIA’s conclusions mandates affirmance if the evidence

is not "so compelling that no reasonable factfinder could" agree with

the BIA’s factual conclusions. Huaman-Cornelio v. BIA, 979 F.3d

995, 999 (4th Cir. 1992). We also defer to the BIA’s credibility findGANDZIAMI-MICKHOU v. GONZALES 3
ings that are supported by substantial evidence. Camara, 378 F.3d at

367. 

II.

A.

Gandziami-Mickhou seeks immigration relief based on her and her

family’s purported involvement with the Congolese Movement for

Democracy and Integral Development (MCDDI). In the proceedings

before the IJ, Gandziami-Mickhou presented evidence tending to

show the following. 

Gandziami-Mickhou’s father was a successful businessman and a

close friend of the MCDDI leader, Bernard Kolelas. GandziamiMickhou’s father joined the MCDDI when it was created in 1989, and

he also helped finance the organization. Gandziami-Mickhou joined

the MCDDI in 1996 and soon became responsible for recruiting and

mobilizing its younger members. 

In October 1997, General Sassou Nguesso, a member of the Congolese Labor Party, overthrew democratically elected president Pascal

Lissouba. Gandziami-Mickhou’s family had lived across the street

from Lissouba in Brazzaville, Congo’s capital city. Nguesso implemented a dictatorship and began oppressing political opponents.

Gandziami-Mickhou’s husband’s uncle was a minister within Lissouba’s government, but he went into exile when Nguesso overthrew the

government. Gandziami-Mickhou’s family also fled Brazzaville when

Nguesso took control. When Gandziami-Mickhou’s family returned

to Brazzaville in January 1998, they moved to a different neighborhood. 

Gandziami-Mickhou was twice recognized as a member of an

opposition party. In October 1998, a colonel in Nguesso’s army

threatened Gandziami-Mickhou and asked her why she was not in

exile. The colonel stated that he would come back for her. Two

months later, war broke out in Brazzaville, and Gandziami-Mickhou

fled into the forest where she lived for several months without sufficient food and water. Occasionally soldiers from Nguesso’s military

4 GANDZIAMI-MICKHOU v. GONZALES
would harass the families hiding in the forest, and they severely beat

Gandziami-Mickhou’s brother. 

In April 1999, a refugee camp in the neighboring Democratic

Republic of Congo accepted Gandziami-Michkou, and she stayed in

the camp for five months before returning to Brazzaville. When

Gandziami-Mickhou returned to Brazzaville, she discovered that her

family’s house had been burned. Neighbors told Gandziami-Mickhou

that it had been intentionally destroyed by Nguesso because of her

family’s political opposition. 

In March 2001, Gandziami-Mickhou was abducted from her home

in the middle of the night by armed men in uniform. GandziamiMickhou knew the men were part of Nguesso’s army from the way

they talked and dressed. The men detained Gandziami-Mickhou in a

tiny room with four other women for two weeks and repeatedly raped

her because she supported Kolelas. When Gandziami-Mickhou initially resisted, a guard beat her with his belt, leaving a scar.

Gandziami-Mickhou was released after she became sick. After recovering, Gandziami-Mickhou attempted suicide by overdosing on pills.

Because of these events, Gandziami-Mickhou’s father suggested

she leave Congo for a while. Gandziami-Mickhou began looking at

schools in the United States and was eventually accepted to Avila

College. Gandziami-Mickhou’s father agreed to pay for her tuition.

Before she left for the United States, Gandziami-Mickhou’s family

received threatening letters directed at her father.

Gandziami-Mickhou came to the United States in January 2002.

Two months later, Nguesso’s government arrested GandziamiMickhou’s father as he was returning from a trip abroad, during

which he met with Lissouba and Kolelas. Gandziami-Mickhou’s

father was killed shortly thereafter. In April 2002, Nguesso’s men

killed Gandziami-Mickhou’s uncle. Gandziami-Mickhou’s mother

then began receiving death threats stating she would be next.

Gandziami-Mickhou’s family fled to southern Congo to hide in her

father’s village. Gandziami-Mickhou has not heard from them since

they went into hiding. During this time, several of GandziamiMickhou’s relatives’ homes have been destroyed by Nguesso’s

regime. 

GANDZIAMI-MICKHOU v. GONZALES 5
Because Gandziami-Mickhou failed to return to college following

the Spring 2002 semester, the INS issued a Notice to Appear, charging her as removable for failing to comply with the conditions of her

visa. Gandziami-Mickhou filed her initial application for immigration

relief in September 2002. Gandziami-Mickhou significantly amended

her application in May 2003, adding allegations regarding the 2001

arrest and rape. 

At a hearing before the IJ, Gandziami-Mickhou conceded removability, but she presented the foregoing evidence in support of her

application for relief. Additionally, Gandziami-Mickhou introduced a

number of documents in support of her application. GandziamiMickhou submitted an affidavit from her sister who has lived in

France since 1999, stating that Gandziami-Mickhou and her father

were active in the MCDDI and that their father and uncles were killed

in 2002. Gandziami-Mickhou also submitted another affidavit from a

childhood friend who had been granted asylum in the United States

and was living in Missouri. The friend stated that GandziamiMickhou’s father was an influential member of the MCDDI and that

Gandziami-Mickhou was also very active in the organization. Letters

from friends still living in Congo indicated that it was too dangerous

to retrieve Gandziami-Mickhou’s medical records and that

Gandziami-Mickhou would risk assassination if she returned to

Congo. 

Gandziami-Mickhou also submitted affidavits from experts on

African history and politics who verified that Gandziami-Mickhou’s

story is consistent with events that had happened in Congo. Further,

Gandziami-Mickhou submitted an affidavit from a licensed professional counselor who diagnosed her as suffering from posttraumatic

stress disorder (PTSD) and depression. The counselor verified that

Gandziami-Mickhou’s psychological presentation was consistent with

someone who had experienced trauma and torture. GandziamiMickhou also submitted an affidavit from Dr. Jehan El-Bayoumi, who

stated that a scar on Gandziami-Mickhou’s buttocks was consistent

with her description of being beaten with a belt buckle. Dr. ElBayoumi also averred that Gandziami-Mickhou appeared to be suffering from PTSD and recommended she continue psychiatric treatment.

Finally, Gandziami-Mickhou submitted a number of background doc6 GANDZIAMI-MICKHOU v. GONZALES
uments describing the political turmoil and human rights abuses in

Congo after Nguesso came into power. 

On cross-examination, Gandziami-Mickhou stated that someone

named Ralph Cukar helped her prepare her asylum application.

According to Gandziami-Mickhou, she wrote her version in French,

and Cukar translated it into English. Gandziami-Mickhou claimed

that Cukar did not put down everything that she told him had happened in her initial application because he said it was not necessary.

Gandziami-Mickhou testified that she did not know where Cukar was

on the day of her hearing. 

Gandziami-Mickhou also testified that she had no intention of

applying for asylum when she arrived in the United States. Although

on her way to the United States Gandziami-Mickhou had visited a sister in France who had received asylum, Gandziami-Mickhou did not

think about applying for asylum until after her father was killed. 

Additionally, Gandziami-Mickhou stated that Kolelas was touring

in South Africa at the time of her hearing but that neither she nor her

family had attempted to contact him regarding her asylum application.

However, Gandziami-Mickhou later changed her story and testified

that she had tried to contact Kolelas through a friend but was unable

to do so. 

Gandziami-Mickhou acknowledged that she did not make any

attempt to get documents from the MCDDI. Although the MCDDI

still operates in Congo, Gandziami-Mickhou stated that she no longer

trusts it because its current president was appointed by Nguesso. In

addition, although Gandziami-Mickhou received some documents

from her friends in Congo, she testified that it was too difficult for

them to obtain her hospital records or contact members of the

MCDDI without raising suspicion.

In response to questions from the IJ, Gandziami-Mickhou testified

that she had disguised herself when she returned to Congo from the

Democratic Republic of Congo so she would not be recognized.

Gandziami-Mickhou also stated that she did not bring her family with

her to the United States because she originally intended to return to

Congo after going to school for two years. 

GANDZIAMI-MICKHOU v. GONZALES 7
B.

In an oral decision, the IJ denied Gandziami-Mickhou’s application, concluding that "[b]ased on the totality of the evidence . . . [she]

failed to meet her burden in establishing past persecution or that she

has a well-founded fear of future persecution should she return to the

Republic of Congo at the present time." J.A. 103-04. Among other

reasons, the IJ noted that Gandziami-Mickhou failed to present evidence from the MCDDI to corroborate her claims that: (1) her father

was a founding or active MCDDI member, or a significant financial

MCDDI contributor; (2) her father was killed because of his association with MCDDI; (3) she was an active member of the MCDDI

involved in their publicity activities; and (4) she was arrested in

March 2001 at least in part for her MCDDI activities. The IJ further

noted that Gandziami-Mickhou did not present a satisfactory explanation for her failure to obtain such corroboration. The IJ pointed to

Gandziami-Mickhou’s testimony that she did not try to obtain documentation and corroboration from the MCDDI and that she did not try

to obtain an affidavit from Kolelas, who was her father’s friend.1

The IJ stated that she was also "perplexed" by several facts. First,

the IJ noted that despite the fact Gandziami-Mickhou came to the

United States on a student visa, she did not attempt to secure visas for

her spouse and children who allegedly had been in and out of hiding

with her. The IJ reasoned that although Gandziami-Mickhou claimed

unawareness of the existence of such visas, her alleged circumstances

in Congo would have prompted her to inquire of embassy officials

1The IJ noted that according to the State Department country report for

the Republic of Congo for the year 2002, the MCDDI was an operating

political party in that country in 2002. Although according to the report

most political parties were ineffective, opposition political parties were

nonetheless able to campaign openly during the year. Thus, the IJ concluded that there was a source in Congo for Gandziami-Mickhou to at

least attempt to obtain this information. Further the IJ pointed to

Gandziami-Mickhou’s testimony that she has friends in Congo who forwarded documents to her such as her marriage certificate and the birth

certificates of her children. The IJ questioned why Gandziami-Mickhou

made no effort to ask her friends to obtain documentation from the

MCDDI. 

8 GANDZIAMI-MICKHOU v. GONZALES
about the possibility of bringing her family members with her to the

United States. Second, the IJ questioned why Gandziami-Mickhou, en

route to the United States, failed to apply for asylum while in France,

where her sister had been granted asylum. Last, in light of the circumstances Gandziami-Mickhou testified about in Congo, the IJ questioned her testimony that when she came to the United States she was

not intending to apply for asylum but rather simply wanted to go to

school.

Additionally, the IJ noted that Gandziami-Mickhou had left Congo

in 2001, passing through its immigration checkpoints with no apparent difficulties. The IJ found that Gandziami-Mickhou’s testimony

that she disguised herself when passing through Congo immigration

checkpoints did not make sense because, according to her testimony,

she had presented her passport for inspection to Congo officials, and

her passport (which contains her undisguised photograph) bears an

exit stamp from these officials to that effect. 

Finally, the IJ found significance in the fact that GandziamiMickhou did not mention in her original asylum application her

alleged arrest, detention, and sexual assault in March 2001. The IJ

recognized that Gandziami-Mickhou stated that Cukar had prepared

the application for her, but the IJ also noted that the signature block

for the application preparer is blank and that she presented no corroboration that someone prepared the document for her. 

In concluding this decision, the IJ expressly stated that she had

"considered all of the documentation in rendering this decision," but

found "that the documentation presented does not overcome [the]

aforementioned concerns." J.A. 106-07. Gandziami-Mickhou

appealed the IJ’s denial of her application, but the BIA affirmed, stating that it agreed that Gandziami-Mickhou failed to carry her burden

of proof and otherwise failed to establish any other grounds for relief.

III.

Gandziami-Mickhou primarily claims that the IJ violated our decision in Camara by disregarding corroborating evidence that she submitted in her application for asylum and withholding of removal. In

Camara, the IJ denied immigration relief based on an adverse crediGANDZIAMI-MICKHOU v. GONZALES 9
bility finding, though she overlooked certain evidence that could have

established an entitlement to relief. There, "quite apart from Camara’s

somewhat discredited testimony, [she] presented independent evidence, which the IJ did not discredit, demonstrating [she] suffered

past persecution for her political beliefs." Id. at 370. Specifically,

Camara presented a "Notice of Escape" documenting her escape from

a military camp where she had been imprisoned. Id. Camara also

offered evidence that she was imprisoned "on account of . . . political

opinion" by presenting: (1) her membership in a political party, as

shown by her membership card and a letter from the party’s leader;

(2) the reason given for her conviction on an arrest warrant and in a

letter from the party’s leader; and (3) State Department reports

recording the brutal suppression of the political party, including the

imprisonment of its members. Id. We noted that the "independent evidence, taken together, provided strong circumstantial evidence that

Camara was imprisoned for political expression in opposition to the

ruling government," and that the IJ erred by "completely ignor[ing]"

this evidence. Id. at 370.

Gandziami-Mickhou argues that the IJ similarly ignored documentary evidence that she submitted to corroborate her testimony.

Gandziami-Mickhou points to several articles and country reports

describing Nguesso’s brutal treatment of opposition parties. She also

cites affidavits from her friends and family that confirmed her

involvement in the MCDDI, the persecution she suffered, and her

father’s death because he was a MCDDI member. She notes that her

birth certificate lists her father’s occupation as an official for the ministry of youth and sports and contends this corroborated her claim that

her father was a close friend of Lissouba and Kolelas. Finally,

Gandziami-Mickhou cites the reports from her doctor and counselor

indicating she is suffering from PTSD and has a scar that is consistent

with her having been beaten with a belt buckle. 

Contrary to Gandziami-Mickhou’s argument, the IJ’s decision was

"[b]ased on the totality of the evidence." J.A. 103. Although the IJ did

not discuss each item’s individual worth, the IJ did not completely

ignore these documents like the IJ in Camara did. 378 F.3d at 370-72.

Instead, after "consider[ing] all of the documentary evidence in rendering [her] decision," the IJ concluded that these documents did not

overcome her concerns about Gandziami-Mickhou’s application. J.A.

10 GANDZIAMI-MICKHOU v. GONZALES
106. In fact, the IJ identified particular pieces of missing, relevant

documentation that would have assisted Gandziami-Mickhou in satisfying her burden of persuasion and explained why it was not unreasonable for her to attempt to obtain them. 

Additionally, unlike in Camara, the documents that the IJ allegedly

ignored do not constitute "independent evidence" that GandziamiMickhou suffered past persecution "on account of . . . political opinion." 378 F.3d at 370 (emphasis added). Whereas Camara provided

a "Notice of Escape" from imprisonment, a membership card from her

political party, a letter from the party’s leader describing her arrest

after participating in a political protest, an arrest warrant for "disturbing the public order," and State Department reports recording the persecution of members of that political party, the only documents that

Gandziami-Mickhou alleges the IJ overlooked that specifically connect her to the persecution of the MCDDI are affidavits from friends

and family — hardly the independent evidence that Camara contemplates. Id. Even accepting Nguesso’s brutal treatment of political

opposition, and assuming that Gandziami-Mickhou was in fact beaten

in prison, she has failed to demonstrate that her imprisonment was

"on account of . . . political opinion." Thus, even had the IJ "completely ignored" this evidence as Gandziami-Mickhou alleges, her

claim fails because she has presented no "independent evidence,

which the IJ did not discredit, demonstrating [she] suffered past persecution for her political beliefs." Id. Because the IJ’s determination

is not manifestly contrary to law and is supported by substantial evidence, we will not upset the agency’s decision to deny GandziamiMickhou’s application for asylum and withholding of removal.2

2Gandziami-Mickhou also argues that the IJ "applied the wrong legal

standard and failed to conduct an independent analysis" in evaluating her

claim for relief under the CAT. Because an alien must have "exhausted

all administrative remedies" before we can review a final order of

removal, 8 U.S.C. § 1252(d)(1), the alien must raise each argument to the

BIA before we have jurisdiction to consider it, Asika v. Ashcroft, 362

F.3d 264, 267 n.3 (4th Cir. 2004). Although Gandziami-Mickhou does

mention the CAT in her brief to the BIA, noticeably absent is any suggestion that the IJ applied the wrong legal standard or failed to conduct

an independent analysis. Thus, because Gandziami-Mickhou did not

raise this issue in her appeal to the BIA, we lack jurisdiction to consider

it. Id.

GANDZIAMI-MICKHOU v. GONZALES 11
IV.

For the foregoing reasons, we deny Gandziami-Mickhou’s petition

to review the BIA’s decision to deny her application for asylum, withholding of removal, and protection under the CAT.3

PETITION FOR REVIEW DENIED

3Gandziami-Mickhou makes additional arguments that the IJ placed

unreasonable demands on her to obtain evidence, that the IJ erroneously

based her decision on speculation and conjecture, and that the IJ erroneously relied on a minor perceived inconsistency. We have considered

these arguments and find them meritless. 

12 GANDZIAMI-MICKHOU v. GONZALES