UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 05-1571

DJOMADJI TOUGOUE GERVAIS,

Petitioner,

versus

ALBERTO R. GONZALES, U.S. Attorney General,

Respondent.

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

Appeals. (A95-223-492)

Argued: September 20, 2006 Decided: November 8, 2006

Before KING and DUNCAN, Circuit Judges, and HAMILTON, Senior

Circuit Judge.

Petition for review granted and case remanded by unpublished per

curiam opinion.

ARGUED: Jacqueline Emanga Ngole, Rockville, Maryland, for

Petitioner. Mark Anthony Exley, OFFICE OF THE UNITED STATES

ATTORNEY, Norfolk, Virginia, for Respondent. ON BRIEF: Paul J.

McNulty, United States Attorney, Alexandria, Virginia, for

Respondent.

Unpublished opinions are not binding precedent in this circuit.

See Local Rule 36(c).
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PER CURIAM:

Djomadji Tougoue Gervais (Gervais), a french speaking native

and citizen of Cameroon, petitions for review of an April 29, 2005

order by the Board of Immigration Appeals (the Board) affirming the

immigration judge’s denial of his application for political asylum

under 8 U.S.C. § 1158(b) and for withholding of removal under 8

U.S.C. § 1231(b)(3). Gervais also contends that he adequately

raised before the Board the immigration judge’s failure to grant

him relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), as

implemented by § 2242 of the Foreign Affairs Reform and

Restructuring Act of 1998, Pub. L. No. 105-277, Div. G, 112 Stat.

2681-82 (Oct. 21, 1998), but that the Board failed to address his

CAT claim. For the following reasons, we vacate the Board’s April

29, 2005 order and remand for further proceedings consistent with

this opinion.

I.

Gervais, currently thirty-two years old, arrived in the United

States on December 8, 2000 pursuant to a nonimmigrant visitor visa,

which he obtained through misrepresentation. In order to obtain

the visa, Gervais falsely certified that he was part of a musical

group scheduled to perform in the United States. He overstayed his

visa, which expired on December 29, 2000, and filed a timely
*Gervais submitted the statement with his application unsworn.

As best we can tell, Gervais swore to the same statement before the

IJ on March 12, 2003.

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application for asylum and withholding of removal based upon his

political views. The Immigration and Naturalization Service, now

the Department of Homeland Security, denied the application and

charged Gervais as a removable alien for overstaying his visa.

Gervais conceded removability, but continued to pursue his claims

for asylum and withholding of removal. He also sought deferral of

removal under CAT. Gervais’ case was referred to an immigration

judge.

A. Evidentiary Hearing Before Immigration Judge

On March 12, 2003, the immigration judge (the IJ) held an

evidentiary hearing on the merits of Gervais’ three claims. The IJ

received the following as documentary evidence: (1) Gervais’

application for asylum and withholding of removal, which

application included an attached written statement by Gervais*; (2)

the State Department’s 2001 Country Report on Human Rights

Practices for Cameroon; (3) a five-page affidavit sworn to by

Gervais on March 12, 2003; (4) a document dated February 12, 2000

and titled “Medico-Legal Certificate #0214827,” (J.A. 44); (5) a

letter to Gervais from his brother dated November 3, 2001; (6) a

letter to Gervais from his friend Firmin dated December 11, 2001;

(7) a newspaper article dated January 29, 2002; (8) Gervais’

passport; (9) his visa to the United States; and (10) a March 1998
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State Department Report entitled “CAMEROON – PROFILE OF ASYLUM

CLAIMS & COUNTRY CONDITIONS,” (J.A. 57).

In his March 12, 2003 affidavit, Gervais stated that he

secretly joined the political opposition party named the Union of

Cameroon Democratic Forces (UCDF) in March 1998. He claimed to

have been very active in the youth activities of the UCDF,

including being elected the assistant secretary in charge of

communications in July 1999. Notably, Gervais did not mention UCDF

in his original application for asylum and withholding of removal

nor in his attached statement.

Gervais also testified at the March 12, 2003 hearing.

Specifically, Gervais testified that, while attending the

University of Douala to obtain his bachelor of law degree, he

participated in a student strike on January 27, 2000 which resulted

in his arrest by the local police and detention in a small cell at

the central police station for two days. Gervais testified that he

was kicked and beaten throughout the time he was detained. He

further testified that he was released after two days “because of

the pressures because everybody was talking about, about it. The

press, the non-governmental agencies, the radio, but also me

because I was very injured.” (J.A. 8). According to Gervais’

testimony, after his release, he went to La Quintinie Hospital

“right away,” (J.A. 9), where he was treated for four days due to

injuries to his small finger, back, tibia and feet. Gervais
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testified that “after [he] left the hospital a military person was

walking there. He told me continue like this. You’re going to see

what’s going to happen to you.” Id. 

Gervais testified that, after approximately three months, he

felt well enough to return to the University of Douala and his

political activism on campus. But, according to Gervais, he

received threats from anti-gangs, which he described as secret

police in plain clothes who had infiltrated the campus and knew

him. He believed his problems became worse “because they realized

that I was a militant in the party.” (J.A. 11). 

After obtaining his bachelor of law degree, Gervais applied in

October 2000 for admission into the master of law degree program at

the University of Douala, but was rejected. According to Gervais’

testimony, he and similarly situated students tried to organize a

strike “to let everybody know, the press, the students, everybody

. . . they . . . kicked us off the university without any valid

reason . . . .” (J.A. 13). However, Gervais testified that,

during the planning stages of the strike, on October 30, 2000, “two

anti-gangs came to pick me up at my studio” near campus. Id. He

testified that he was then taken to a police station near campus

where he was beaten twice a day for four days until he escaped.

Gervais testified that, during the beatings, the police officers

told him he would die if he continued membership in the UCDF.
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Following his escape, Gervais traveled by public bus to the

city of Bafang, Cameroon where his parents lived. Gervais

testified that, on November 20, 2000, he participated in a

political protest march in Bafang, which march was held by UCDF and

other parties “to denounce the practices of the operational

commandments.” (J.A. 18). Gervais testified that the anti-gangs

noticed him in the protest march. Gervais next testified that on

November 22, 2000, the anti-gangs seized him from his parents home

and took him to their headquarters brigade in Bafang where they

beat him almost the whole day. In describing how he was beaten,

Gervais testified:

Back of the feet, that’s where they begin. They asked me

to stand up. I could not stand up. They started to beat

me in the buttocks. They asked me to sit down.

Impossible. They continue to beat me up. Then they,

they put me on the balancoir or swing. They tied my,

both my hands and they hanged me down, suspended there

for about half an hour.

(J.A. 19-20). Gervais next testified that, because he had diarrhea

and a fever, the secret police officers took him to a hospital in

Bafang. 

Within a few hours, Gervais’ father was able to remove him

from the hospital and take him to a hospital twenty-minutes away in

Kekem, where he stayed for six days. Gervais testified that,

meanwhile, his Uncle Michel had arrived from the United States and

“he infiltrated me within a music group which was coming to the

U.S.” (J.A. 21).
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B. March 12, 2003 Oral Decision of the IJ

In her March 12, 2003 decision entitled “ORAL DECISION OF THE

IMMIGRATION JUDGE,” the IJ concluded: 

Accordingly, we find that the respondent has not

presented a convincing story. We deny his applications

for asylum and withholding of removal, and relief under

the Torture Convention because we are not convinced of

his credibility. 

(J.A. 73). The adverse credibility determination was based upon

the following eight separate and specific factors articulated by

the IJ: 

1. The IJ found that it was not until the March 12,

2003 merits hearing that Gervais provided evidence that the reason

he could not register for his master of law degree from the

University of Douala was related to his involvement with UCDF.

According to the IJ: “This is a very significant embellishment

which casts serious doubt on the credibility of [Gervais’]

testimony.” (J.A. 69). 

2. The IJ found that Gervais’ account of his January

2000 arrest and release in his statement accompanying his

application for asylum and withholding of removal was not entirely

consistent with his later account given in his later separate sworn

affidavit. In this regard, the IJ stated: “According to the

earlier version, he was released on January 29 at 9 p.m. because

his shirt was stained with blood. . . . In the later version, he
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states that pressure from press and human rights organizations was

responsible for his release . . . .” (J.A. 70).

3. The IJ found that the document dated February 12,

2000 and titled “Medico-Legal Certificate #0214827,” (J.A. 44), was

inconsistent with Gervais’ testimony as to when he was released

from the hospital. The IJ found that, based upon the time line

provided by Gervais in his testimony, the document should have been

dated February 3 or 4, 2000.

4. The IJ also found that Gervais’ accounts of his

November 2000 arrest differed between the statement accompanying

his application for asylum and withholding of removal and his later

in time affidavit. According to the IJ: “In the earlier version

. . . , he states that he was ‘invited to go to Bafang in order to

certify my signature at the Bafang courthouse’ and tried to run

away while under guard at the courthouse, but then ended up in the

hospital. In the later version, he states ‘I was arrested at my

house by three officers driving a government car. We had some

misunderstanding relating to a signature that I was supposed to

pose on a document I did not recognize.’” (J.A. 70-71).

5. Gervais obtained his visa through misrepresentation

by falsely certifying that he was part of a musical group scheduled

to perform in the United States when, in fact, he was not a

musician.
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6. Gervais failed to present his uncle as a witness at

the evidentiary hearing, when he could have provided corroboration.

In this regard, the IJ specifically stated: “[Gervais] has an

uncle in the United States who had the same problems as he did in

Cameroon and was granted asylum. [Gervais] did not invite that

uncle to come to the Court as a witness for him.” (J.A. 71).

7. A newspaper article that Gervais presented

contradicted Gervais’ testimony. According to the IJ: “The

newspaper article states that he had disappeared and that his

family was very worried about him. The family is concerned about

whether he has committed suicide or met an accidental death. . . .

[Gervais’] explanation for this story, which does not seem to

accord with his own account, is that only close family members knew

about where he had gone or that he had left Cameroon. However,

[Gervais] claims that his arrangements for his departure were

arranged by his father with the assistance of an uncle. He states

‘during a family reunion it was decided that my future was no

longer in Cameroon . . . .’ Thus, we have a major inconsistency

here.” (J.A. 71-72).

8. Gervais was able to depart Cameroon through an

official exit point. “The [Petitioner] was able to leave Cameroon

without any problem. He went through exit control at the airport

in Cameroon.” (J.A. 72-73). 

C. The Board’s First Order
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Gervais timely appealed the IJ’s adverse decision to the

Board. On August 7, 2003, the Board ordered the record returned to

the IJ for the IJ to take appropriate action to certify to the

Board that the record was complete. The Board took this action

because its review of the record of the proceedings before the IJ

revealed “that a portion of testimony of the hearing and a portion

of the order on the Immigration Judge’s oral decision is missing.”

(J.A. 86).

D. February 25, 2004 Written Decision of the

IJ/Order of Certification

On February 25, 2004, the IJ issued a decision entitled

“WRITTEN DECISION OF THE IMMIGRATION JUDGE” and “ORDER OF

CERTIFICATION.” (J.A. 148). In this decision, the IJ certified

that she had reviewed her March 12, 2003 Oral Decision and the

transcript of the hearing conducted the same day and had made

corrections to both. She then expressly certified that the

corrections made to such decision and transcript were correct.

The IJ also noted that Gervais sought to admit into evidence

a package of documentary evidence at the hearing before her on

remand. The IJ refused to admit the documents on the ground that

the Board’s limited remand to complete the record did not reopen

Gervais’ immigration proceedings to permit the submission of new

evidence. On the question of whether Gervais’ package of

documentary evidence would satisfy the standard for granting a
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motion to reopen proceedings, the IJ answered no. Specifically,

the IJ stated:

A motion to reopen may be granted when there is new

material evidence that could not have been submitted at

the original hearing. We note that all of the evidence

submitted in the new package is evidence that predates

the date of the hearing in this case, March 12, 2003,

other than the U.S. State Department Human Rights Report

for Cameroon for 2002 which was printed on March 31,

2003. In reviewing the State Department report for 2002,

we note that the portions underlined or starred by

[Gervais] either repeat language from the 2001 report or

reference matters that are not directly related to

[Gervais’] claim. Thus, [Gervais] has not established

that he is seeking to submit any evidence that was

unavailable or could not have been submitted at the

original hearing. Accordingly, this evidence does not

comport with the type of evidence for which a motion to

reopen may be granted.

(J.A. 150).

E. The Board’s Order Following Remand

Gervais timely appealed the IJ’s February 25, 2004 decision to

the Board. Notably, although Gervais listed his CAT claim in his

notice of appeal, he did not expressly address such claim in his

appeal before the Board except to briefly mention it in one

sentence on page sixteen of his thirty-one page brief before the

Board and then again in the final sentence of the same brief.

Specifically, in the second full paragraph on page sixteen of his

brief before the Board, Gervais states: “Similarly, Respondent is

eligible for withholding under both 8 U.S.C. § 1231(b)(3) and the

Torture Convention.” (J.A. 174). The final sentence of the same

brief states: “For the foregoing reasons, the decision below
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should be reversed and Respondent granted asylum pursuant to 8

U.S.C. § 1158 and, in the alternative, withholding of removal

pursuant to 8 U.S.C. § 1231(b)(3) and the Convention Against

Torture.” (J.A. 189). Here, we note that in his appellate brief

before this court, Gervais states that he “did not raise the CAT

claim before the Board.” (Gervais’ Br. at 14).

On April 29, 2005, the Board issued a two-page order (the

Board’s Second Order), which lists Gervais as applying for relief

only from the IJ’s denial of his claims for asylum and withholding

of removal. Ultimately, the Board held that the IJ’s decision

denying Gervais’ applications for asylum and withholding of removal

based upon her adverse credibility determination was “supported by

the record.” (J.A. 156). According to the Board, “[t]he

inconsistencies and omissions cited by the Immigration Judge are

present in the record and provide cogent reasons upon which to base

an adverse credibility determination.” Id. The Board also

specifically addressed two of the inconsistencies found by the IJ.

First, the Board specifically identified what it considered

inconsistencies concerning Gervais’ January 2000 arrest:

[I]n [Gervais’] first asylum application, he stated

that he was released from detention on January 29, 2000,

at 9 p.m. because the Cameroonian authorities discovered

that his shirt was stained with blood. . . . However, in

his second written asylum attachment, submitted during

his proceedings, [Gervais] stated that he was released

from detention on January 29, 2000, due to pressure from

the media and human rights organizations and was taken to

the hospital for 4 days. 
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(J.A. 156). The Board also specifically identified what it

considered inconsistencies concerning Gervais’ November 2000

arrest: 

[I]n his first asylum application, he stated that in

November 2000 he was invited to go to Bafang in order to

certify his signature on a document at the Bafang

Courthouse where he was warned by a stranger to try and

get away from the men accompanying him. . . . According

to [Gervais], he tried to run away, but ended up in the

hospital. . . . In contrast, [Gervais] stated in his

second attached statement that he was arrested at home in

November 2000 by several officers driving a government

vehicle. . . . [Gervais] stated that he had a

“misunderstanding” with the officers regarding a

signature he was supposed to put on a document that he

did not recognize. . . . [Gervais] stated that he was

beaten and taken to a hospital when he refused to sign.

(J.A. 157). The Board concluded: “Under these circumstances, we

find that the inconsistencies between [Gervais’] claims are

significant and go to the heart of his claim for relief.” Id. 

Gervais filed a timely petition for review of the Board’s

Second Order. Gervais seeks review of the Board’s rejection of his

asylum and withholding of removal claims and the IJ’s rejection of

his CAT claim.

II.

The posture of this appeal presents the threshold issue of

whether Gervais has exhausted his administrative remedies with

respect to his CAT claim, as our ability to review the merits of

such claim is conditioned upon Gervais having exhausted all of his

administrative remedies as of right. See 8 U.S.C. § 1252(d)(1) (“A
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court may review a final order of removal only if . . . the alien

has exhausted all administrative remedies available to the alien as

of right.”). Unfortunately, the record on this issue is so unclear

that we cannot resolve it absent a remand to the Board. One, the

Board’s Second Order, from which the instant appeal is taken,

nowhere mentions Gervais’ CAT claim. Two, although Gervais lists

his CAT claim in his second notice of appeal to the Board, the

appellate brief which Gervais submitted to the Board in support of

his appeal makes only scant reference to his CAT claim. Thus, from

the record as it currently stands, we cannot discern whether the

Board even understood Gervais as challenging the IJ’s denial of his

CAT claim in his appeal before the Board. Accordingly, we vacate

the Board’s Second Order and remand this case to the Board with

instructions that the Board determine whether Gervais sufficiently

raised his CAT claim before the Board in order to have preserved it

for appellate review before the Board.

If the Board concludes on remand that Gervais sufficiently

raised his CAT claim before the Board in order to have preserved it

for appellate review before the Board, we instruct the Board to

remand the case back to the IJ for a reevaluation of her

credibility determination regarding Gervais with respect to his

asylum claim, his withholding of removal claim and his CAT claim.

While the IJ’s adverse credibility determination(s) appear to be

supported by substantial evidence in the record, when considering
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the documentary evidence before the IJ at the March 12, 2003

evidentiary hearing, which documentary evidence the IJ appears not

to have considered, we have concerns as to the impact of this

evidence on the IJ’s credibility determination(s) regarding

Gervais. We instruct the IJ to expressly consider the documentary

evidence before her at the March 12, 2003 evidentiary hearing in

reevaluating her credibility determination(s) of Gervais. See

Camara v. Ashcroft, 378 F.3d 361, 369-71 (4th Cir. 2004). 

Alternatively, if the Board concludes on remand that Gervais

did not sufficiently raise his CAT claim before the Board in order

to have preserved it for appellate review before the Board, we

instruct the Board to remand the case back to the IJ for a

reevaluation of her credibility determination regarding Gervais

only with respect to his asylum claim and his withholding of

removal claim. Under this scenario, the IJ would not be at liberty

to revisit the CAT claim. Again, the IJ should expressly consider

the documentary evidence before her at the March 12, 2003

evidentiary hearing in reevaluating her credibility

determination(s) of Gervais. See id. 

If, on remand before the IJ, the IJ still renders a decision

adverse to Gervais, Gervais could then appeal the case back to the

Board. On appeal before the Board following our directed remand to

the IJ, if the Board had previously concluded that Gervais had not

preserved his CAT claim before the Board, the Board would not need
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to address Gervais’ CAT claim further. If, however, the Board had

previously concluded that Gervais had sufficiently raised his CAT

claim before the Board, the Board could address that claim and the

asylum and withholding of removal claims conditioned, of course,

upon Gervais complying with all procedural and substantive rules

and regulations pertaining to appeals before the Board.

In conclusion, we vacate the Board’s Second Order and remand

this case to the Board with instructions to carry out the detailed

instructions we have just set forth.

PETITION FOR REVIEW GRANTED AND CASE REMANDED