Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not *

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-60048

Summary Calendar

HORTENCE SYLVIE KAMBIWA,

Petitioner 

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, 

Respondent 

Petition for Review of an Order of the 

Board of Immigration Appeals

BIA No. A097 636 162

Before KING, STEWART, and HAYNES, Circuit Judges.

PER CURIAM:*

Petitioner Hortence Sylvie Kambiwa (“Kambiwa”) seeks review of an order

of the Board of Immigration Appeals (“BIA”) dated December 29, 2008,

dismissing her appeal of the Immigration Judge’s (“IJ”) denial of her

United States Court of Appeals

Fifth Circuit

F I L E D

January 5, 2010

Charles R. Fulbruge III

Clerk
No. 09-60048

 The IJ admitted a medical certificate that had been properly translated and to which 1

the DHS had no objection. 

2

applications for asylum, withholding of removal, and protection pursuant to the

regulations implementing the Convention Against Torture (“CAT”). Because we

find the BIA’s decision supported by substantial evidence, we DENY the petition.

I. BACKGROUND

Kambiwa is a female native of Cameroon who was admitted to the United

States on April 1, 2003, as a nonimmigrant visitor with authorization to remain

until September 30, 2003. She filed an application for asylum and withholding

of removal with the Department of Homeland Security (“DHS”), claiming that

she is a member of the Bamileke tribe in Cameroon and opposed her arranged

marriage. Kambiwa’s application was denied. On October 15, 2003, DHS issued

a Notice to Appear, charging her with removability pursuant to section

237(a)(1)(B) of the Immigration and Nationality Act, (“INA”), 8 U.S.C. §

1227(a)(1)(B), as an alien who remained in the United States longer than

permitted. On November 4, 2003, Kambiwa appeared in Immigration Court and

admitted the allegations in the Notice.

On January 27, 2004, Kambiwa again appeared in Immigration Court for

a merits hearing regarding her applications for asylum, withholding of removal,

and protection pursuant to CAT. Kambiwa submitted supporting exhibits with

her applications, including her birth and marriage certificates and letters from

her mother and husband. After DHS objected, the IJ marked the certificates

only for identification purposes because they were not completely translated and

were not authenticated. The IJ also admitted the letters into evidence, but 1

noted that the letters would be given very little weight.

To support her application, Kambiwa presented witness testimony of

Herbert Nitcheu (“Nitcheu”). Nitcheu, a member of the Bamileke tribe from

Cameroon, testified regarding the practice of arranged marriages in the tribe,
No. 09-60048

3

and that a woman who refused to enter into an arranged marriage would face

punishment. Nitcheu admitted that he did not know Kambiwa and met her for

the first time on the day of his testimony.

Kambiwa also testified regarding the allegations in her applications.

Kambiwa claimed that a man named Jean Ndjambou (“Ndjambou”), who already

had nine wives, came to her family home in March 2001 to request her hand in

marriage. In June 2001, Kambiwa traveled with her uncles to the local village

to marry Ndjambou. When she refused, however, her uncles became upset and

punished her by shaving her head and putting pepper in her eyes and vagina.

Kambiwa also testified that she was kept in Ndjambou’s home against her will.

When she refused to have relations with Ndjambou, he threatened to kill her

and a man named Valentin Nguetsa (“Nguetsa”), Kambiwa’s then-fiancé.

Kambiwa testified that she managed to escape Ndjambou’s home in February

2002 with the help of Ndjambou’s first wife. Kambiwa also testified that after

she married Nguetsa in April 2002, her uncles consulted with a village

“charlatan witch man” to kill her by leaving “a traditional remedy” on her door

step. Kambiwa testified that she then ran away with Nguetsa to his parents’

house until she came to the United States. Nguetsa remains in Cameroon, as

do her children. Kambiwa claims that in August 2003, Ndjambou made a

complaint against Nguetsa and that Nguetsa was arrested and kept at the police

station for two days. Kambiwa testified that she fears returning to Cameroon

because she claims the government can “put you to death” if you refuse to enter

into an arranged marriage.

In an oral decision, the Immigration Judge denied Kambiwa’s application

for asylum, withholding of removal, and withholding pursuant to CAT. The IJ

considered Kambiwa’s “demeanor while testifying,” “the rationality, internal

consistency, and the persuasiveness of the testimony,” and the totality of the

evidence, and found that Kambiwa did not provide credible testimony in support
No. 09-60048

 The IJ stated that Kambiwa “is simply a member of a family who is following the 3

traditions of the Bamileke tribe in Cameroon.”

 The BIA noted that Kambiwa did not speak English, was unfamiliar with immigration 4

proceedings, and was pro se when she filed her asylum application and at her initial hearing.

 The BIA questioned the worth of a detailed adjudication of whether Kambiwa was a 5

member of a particular social group, given that the adverse credibility finding “in and of itself”

defeated her claims. Nonetheless, the BIA remanded proceedings to the IJ.

4

of her applications. The IJ also held that even if Kambiwa’s testimony was true,

her application for asylum would not be granted because she did not

demonstrate any nexus between the treatment she alleged and any protected

category enumerated in the INA, 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). 

Though Kambiwa alleged in her application that she was a member of a

particular social group, the IJ found that she failed to present evidence of her

membership. Additionally, the IJ found that Kambiwa failed to establish 3

eligibility for relief under the CAT because she did not demonstrate that she

would be tortured if returned to Cameroon. Finally, the IJ found that Kambiwa

had knowingly made a frivolous claim for asylum and was therefore barred from

relief. Kambiwa appealed.

On May 27, 2005, the BIA dismissed in part and sustained in part

Kambiwa’s appeal. The BIA specifically adopted the decision of the IJ denying

asylum based on Kambiwa’s lack of credibility, and dismissed this element of

Kambiwa’s appeal. The BIA, however, sustained Kambiwa’s appeal of the IJ’s

decision that she had filed a frivolous asylum application. Kambiwa filed a 4

petition for review with this Court.

In response, DHS filed an unopposed motion to remand for further

consideration of Kambiwa’s claim that she feared persecution because of her

membership in a particular social group. We granted the motion on February

7, 2006. On November 20, 2006, the BIA remanded to the IJ for further

proceedings and entry of a new decision. In its remand brief, the DHS conceded 5
No. 09-60048

 We note that while Kambiwa initially proceeded pro se, she was represented by

6

counsel when her 2004 appeal brief was filed with the BIA. 

5

that Kambiwa was a member of a cognizable social group: Bamileke female tribe

members who are opposed to arranged or forced marriages.

On remand, Kambiwa appeared at a hearing on May 17, 2007, before a

different IJ. No additional evidence was submitted during the hearing. Instead,

the IJ recognized the prior IJ’s decision and reached the same conclusions

regarding the denial of Kambiwa’s applications for relief and protection from

removal, with two exceptions: (1) it noted that the frivolous finding had been

overturned by the BIA; and (2) it noted DHS’s concession regarding Kambiwa’s

membership in a cognizable social group. Kambiwa appealed to the BIA,

arguing that the second IJ’s order holding that Kambiwa was a member of a

particular social group necessitated a re-examination of the prior denial of her

asylum application based on adverse credibility. 

On December 29, 2008, the BIA dismissed her appeal. The BIA held that

the DHS’s concession did not alter the first IJ’s adverse credibility

determination, which was based on inconsistencies in Kambiwa’s claim not

related to her assertions of tribal membership or opposition to forced marriage.

The BIA also noted that neither it nor the Fifth Circuit had disturbed the

previous adverse credibility finding. This petition for review followed. 

II. DISCUSSION

As a threshold matter, we examine whether we have jurisdiction to review

the BIA’s order. DHS argues that Kambiwa failed to exhaust her administrative

remedies regarding her withholding of removal and CAT protection claims. Our

review of the record shows that Kambiwa mentioned her withholding of removal

claim in her 2004 notice of appeal to the Board, but has not raised the issue in

subsequent briefing. Similarly, her 2007 briefs to the BIA address her 6

membership in a social group related to her asylum application, but not her
No. 09-60048

 Kambiwa’s 2007 Notice of Appeal to the BIA refers to a general appeal of the IJ’s 7

credibility determination.

6

withholding for removal claim. We do not presume to treat Kambiwa’s asylum 7

and withholding of removal claims separately. See Mikhael v. INS, 115 F.3d

299, 306 (5th Cir. 1997) (holding that, though the claims are reviewed together,

“a claim for asylum is a distinct remedy than a claim for withholding of

deportation.”). Moreover, none of Kambiwa’s notices of appeal or BIA briefs

mention or argue her CAT claims. Because Kambiwa failed to exhaust the

withholding of removal and CAT claims with the BIA, we do not have

jurisdiction to review the petition with respect to those claims. See Wang v.

Ashcroft, 260 F.3d 448, 452-53 (5th Cir. 2001). 

For Kambiwa’s asylum claims, we review the BIA’s decision and only

consider the IJ’s decision to the extent that it impacted the BIA’s determination.

Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). Questions of law are

reviewed de novo. Nakimbugwe v. Gonzales, 475 F.3d 281, 283 (5th Cir. 2007).

We review factual findings for substantial evidence, which requires “only that

the BIA’s conclusion be based upon the evidence presented and be substantially

reasonable.” Kane v. Holder, 581 F.3d 231, 236 (5th Cir. 2009). Our review of

credibility findings is deferential. Efe v. Ashcroft, 293 F.3d 899, 903 (5th Cir.

2002). We may not reverse the BIA’s factual findings unless the evidence

compels a contrary conclusion. Theodoros v. Gonzalez, 490 F.3d 396, 400 (5th

Cir. 2007) (citations omitted). Since the BIA adopted the IJ’s findings regarding

Kambiwa’s credibility, we review the IJ’s findings here. 

In order to be eligible for asylum, Kambiwa had to prove that she is unable

or unwilling to return to Cameroon 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. Majd v. Gonzales, 446 F.3d 590, 595

(5th Cir. 2006); 8 U.S.C. § 1101(a)(42)(A). Even assuming eligibility, the
No. 09-60048

7

Attorney General retains discretion to grant or deny asylum. Mikhael, 115 F.3d

at 303.

Here, our review of the record demonstrates that the IJ’s findings are

supported by substantial evidence. The IJ found that Kambiwa was evasive,

that she gave very short answers, and that she seemed to have great difficulty

in answering any question directly. For example, when asked when she first

found out Ndjambou wanted to marry her, Kambiwa responded that this

occurred when she reached the village. Kambiwa was then asked who told her,

and she said that her uncles “reminded her.” Kambiwa was then questioned how

she already knew, to which she answered that she knew when she left the

village. The IJ found that this testimony seemed “circular” and “made no sense,”

and did not answer questions specifically addressed to Kambiwa. 

The IJ also cited numerous instances of inconsistencies in Kambiwa’s

testimony. For example, he noted that Kambiwa testified that on March 5, 2001,

Ndjambou came to the house and asked her family to allow him to marry her.

Kambiwa then stated that on June 20, 2001, her uncle took her to the village to

meet Ndjambou, and that when she reached the village, she found out about the

marriage. On June 20, her uncle reminded her that on March 5 Ndjambou had

come to the house to ask to marry her. The IJ noted that Ndjambou could not

explain why her uncle would have to state that Ndjambou had come to the house

on March 5, but that Kambiwa specifically stated that her uncle mentioned that

date. As another example, Kambiwa testified that her uncles threatened her

father because he refused to send her to marry Ndjambou. Kambiwa further

testified, however, that her father died in September 2000, yet the marriage to

Ndjambou was not arranged until March 2001. Therefore, it would not be

possible for her father to be threatened by her uncles. Moreover, when Kambiwa

was asked whether she was watched during the period when she claimed she

was kept in Ndjambou’s house, she stated that she did not go there. In addition,
No. 09-60048

8

when asked how her father died, Kambiwa stated he was found dead in his room

and had died of worry because he did not want her to marry an old man. The

letter Kambiwa presented from her mother, however, stated that Kambiwa’s

father was killed by her uncles. At the close of the evidence, the IJ stated, “In

consideration of the totality of the evidence and [Kambiwa’s] testimony the

Court is convinced that [Kambiwa] has not provided credible testimony in

support of her application.” We cannot say that the record compels a contrary

conclusion. 

Kambiwa asserts that some of the inconsistencies may be explained by

problems with the translator in the removal hearing. There is no evidence in the

record that testimony was misinterpreted, and therefore no basis to overturn the

IJ’s conclusions. See Wang v. Holder, 569 F.3d at 539 (“Given that the entire

proceeding was tape recorded, we see nothing to indicate that [petitioner] could

not have offered evidence of an improper translation in a motion for

reconsideration based upon that tape if the translation was faulty.”) 

Kambiwa also argues that the second IJ’s findings require review because

the DHS conceded her credibility on remand. This argument is without merit.

DHS specifically conceded that Kambiwa is a member of a protected group, but

did not concede Kambiwa’s credibility. Moreover, as the BIA noted, the

credibility determination addressed inconsistencies in facts that are unrelated

to Kambiwa’s membership in the Bamileke tribe or to her opposition to arranged

marriages. Nothing in the record supports reversal of the first IJ’s credibility

determinations. 

III. CONCLUSION

Because of the strong deference given to the IJ’s credibility findings and

the absence of evidence requiring a contrary conclusion, we conclude that

Kambiwa has failed to show that she is entitled to asylum. Accordingly, we

DENY the petition for review.