Djomadji Tougoue Gervais v. ALBERTO R. GONZALES, U.S. Attorney General

UNPUBLISHED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Petition for review granted and case remanded by unpublished per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Unpublished opinions are not binding precedent in this circuit.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

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*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

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