Ela Gandziami-Mickhou v.  ALBERTO R. GONZALES, Attorney General

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, Wash-
ington 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, WASHING-
TON COLLEGE OF LAW, International Human Rights Clinic,
Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney

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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 non-
immigrant 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 fail-
ing to comply with the conditions of her visa. Gandziami-Mickhou
subsequently applied for asylum, withholding of removal, and protec-
tion 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 rea-
sons 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, nation-
ality, 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.
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INS, 195 F.3d 198, 201 (4th Cir. 1999). To satisfy the subjective com-
ponent, an applicant must present "candid, credible, and sincere testi-
mony demonstrating a genuine fear of persecution." Id. (internal
quotations omitted). The objective component requires "specific, con-
crete 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 demon-
strate 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 deter-
mination. 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 find-
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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. Gandziami-
Mickhou’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 Con-
golese 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 imple-
mented a dictatorship and began oppressing political opponents.
Gandziami-Mickhou’s husband’s uncle was a minister within Lissou-
ba’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 neighbor-
hood.
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 suffi-
cient food and water. Occasionally soldiers from Nguesso’s military
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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. Gandziami-
Mickhou 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 ini-
tially resisted, a guard beat her with his belt, leaving a scar.
Gandziami-Mickhou was released after she became sick. After recov-
ering, 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 Gandziami-
Mickhou’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 Gandziami-
Mickhou’s relatives’ homes have been destroyed by Nguesso’s
regime.
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Because Gandziami-Mickhou failed to return to college following
the Spring 2002 semester, the INS issued a Notice to Appear, charg-
ing 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 remov-
ability, 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. Gandziami-
Mickhou 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 Gandziami-
Mickhou’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 profes-
sional 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. Gandziami-
Mickhou 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. El-
Bayoumi also averred that Gandziami-Mickhou appeared to be suffer-
ing from PTSD and recommended she continue psychiatric treatment.
Finally, Gandziami-Mickhou submitted a number of background doc-
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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 hap-
pened 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 sis-
ter 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.
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B.
In an oral decision, the IJ denied Gandziami-Mickhou’s applica-
tion, 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 evi-
dence 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 associa-
tion 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 explana-
tion for her failure to obtain such corroboration. The IJ pointed to
Gandziami-Mickhou’s testimony that she did not try to obtain docu-
mentation 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 con-
cluded 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 for-
warded 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.
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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 circum-
stances Gandziami-Mickhou testified about in Congo, the IJ ques-
tioned 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 appar-
ent 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 Gandziami-
Mickhou 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 corrob-
oration 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, stat-
ing 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 deci-
sion in Camara by disregarding corroborating evidence that she sub-
mitted in her application for asylum and withholding of removal. In
Camara, the IJ denied immigration relief based on an adverse credi-
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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 evi-
dence, 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 evi-
dence, 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 documen-
tary 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 min-
istry 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 ren-
dering [her] decision," the IJ concluded that these documents did not
overcome her concerns about Gandziami-Mickhou’s application. J.A.
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106. In fact, the IJ identified particular pieces of missing, relevant
documentation that would have assisted Gandziami-Mickhou in satis-
fying her burden of persuasion and explained why it was not unrea-
sonable for her to attempt to obtain them.
Additionally, unlike in Camara, the documents that the IJ allegedly
ignored do not constitute "independent evidence" that Gandziami-
Mickhou suffered past persecution "on account of . . . political opin-
ion." 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 "disturb-
ing the public order," and State Department reports recording the per-
secution of members of that political party, the only documents that
Gandziami-Mickhou alleges the IJ overlooked that specifically con-
nect her to the persecution of the MCDDI are affidavits from friends
and family — hardly the independent evidence that Camara contem-
plates. 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 "com-
pletely 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 per-
secution for her political beliefs." Id. Because the IJ’s determination
is not manifestly contrary to law and is supported by substantial evi-
dence, we will not upset the agency’s decision to deny Gandziami-
Mickhou’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 sug-
gestion 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.
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IV.
For the foregoing reasons, we deny Gandziami-Mickhou’s petition
to review the BIA’s decision to deny her application for asylum, with-
holding 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 errone-
ously relied on a minor perceived inconsistency. We have considered
these arguments and find them meritless.
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