No: 05-5496 SIMON JEAN PAUL YOMBA v. Attorney General of the United States

The Honorable Harold A. Ackerman, Senior United States District Judge for the*
District of New Jersey, sitting by designation.
1
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 05-5496
SIMON JEAN PAUL YOMBA,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED
STATES
Petition for Review of an Order of the
Board of Immigration Appeals
No. A97-647-523
Immigration Judge: Hon. Donald V. Ferlise
Submitted pursuant to Third Circuit LAR 34.1(a)
April 24, 2007
Before: McKEE, AMBRO, Circuit Judges and
ACKERMAN, District Judge*
(Opinion filed: October 23, 2007)
OPINION
McKEE, Circuit Judge.
Simon John Paul Yomba petitions for review of a final order of removal of the
Board of Immigration Appeals that adopted and affirmed the Immigration Judge’s

-- 1 of 12 --

Yomba does not challenge the denial of his claim for relief under the CAT.1
2
decision denying Yomba’s claims for asylum, withholding of removal and relief under
the Convention Against Torture (“CAT”), as well as the IJ’s determination that Yomba
filed a frivolous asylum application. For the reasons that follow, we will deny the
petition for review as to the claims for asylum and withholding of removal. We will1
grant the petition for review as to the frivolous asylum application.
I.
Inasmuch as we write primarily for the parties who are familiar with this case, we
need not set forth the historical or procedural background except insofar as may be
helpful to our discussion. The BIA adopted the decision of the IJ with two
modifications. The BIA did not agree with the IJ’s finding that Yomba was inconsistent
about whether he had been summoned to appear before the prefect instead of the
governor. The BIA also concluded that the IJ erred in finding that Yomba had testified
inconsistently about whether gangsters first warned him to leave Cameroon or whether
he first received a phone call advising him to do so. However, the BIA found that
Yomba did not show that the remainder of the IJ’s finding that he was not credible was
clearly erroneous. The BIA also found that Yomba did not establish that the IJ erred in
concluding that Yomba’s asylum application was frivolous.
II.
Where the BIA invokes specific aspects of the IJ’s analysis and fact finding in

-- 2 of 12 --

3
support of its conclusions, we review both the IJ’s and the BIA’s decisions. Voci v.
Gonzales, 409 F.3d 607, 613 (3d Cir. 2005). We review the determination that Yomba
failed to establish eligibility for asylum or withholding of removal for substantial
evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). See INA § 242(b)(4)(B).
“Under this standard, a finding will stand if it is supported by reasonable, substantial, and
probative evidence in the record when considered as a whole.” Secaida-Rosales v. INS,
331 F.3d 297, 307 (3d Cir. 2003) (citation and internal quotations omitted). The same
standard applies to the BIA’s denial of the claim for withholding of removal. We may
not reverse absent a finding that the record “not only supports [a contrary] conclusion,
but compels it.” Elias-Zacarias, 502 U.S. at 480 n.1.
When the IJ’s holding is based on adverse credibility determinations, we affirm “if
there is substantial evidence in the record to support it.” Senathirajah v. INS, 157 F.3d
210, 216 (3d Cir. 1998). We ask whether the credibility determination “is supported by
evidence that a reasonable mind would find adequate” and whether it is appropriately
grounded in the record. Dia v. Ashcroft, 353 F.3d 228, 249-50 (3d Cir. 2002)(en banc).
However, “an immigration judge who rejects a witness’s positive testimony because in
his or her judgment it lacks credibility should offer a specific, cogent reason for his or
her disbelief.” Senathirajah, 157 F.3d at 216 (citation, internal quotations and bracket
omitted). “Adverse credibility determinations based on speculation or conjecture, rather
than on evidence in the record, are reversible.” Gao v. Ashcroft, 299 F.3d 266, 272 (3d

-- 3 of 12 --

As we noted in Zheng v. Gonzales, 417 F.3d 379, 381 n.1 (3d Cir. 2005):2
Congress has . . . revised this judicially created standard to
allow a trier of fact to find a lack of credibility based on any
inconsistency or falsehood, “without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of
the applicant’s claim.” Real ID ACT of 2005, § 101(a)(3),
Pub.L. No. 109-13, 119 Stat. 231, 303, to be codified at 8
U.S.C. § 1158(b)(1)(B)(iii). This provision, however, applies
only to applications for asylum made after the effective date
of the Real ID Act [May 11, 2005].
Yomba’s application for asylum was filed on June 25, 2003. Accordingly, the new
standard does not apply to his case.
4
Cir. 2002) (citation omitted). “Generally, minor inconsistencies and minor omissions
that reveal nothing about an asylum applicant’s fear for his safety are not an adequate
basis for an adverse credibility finding.” Id. (citation and internal quotations omitted).
“The discrepancies must involve the heart of the asylum claim.” Id. (citation and2
internal quotations).
III.
Yomba contends that the adverse credibility findings of the IJ and BIA are not
supported by substantial evidence because they are based on purported discrepancies that
do not actually exist, or that they are minor and irrelevant. With one exception, we
disagree. The exception concerns the conclusions the IJ drew from the absence of scars
on Yomba’s feet. In explaining his decision, the IJ said:

-- 4 of 12 --

5
It is impossible for this Court to believe that after being
beaten on the soles of his feet for 150 times and to have his
feet being cut and bleeding and subsequently being treated
for 45 days in a hospital for his wounds, that there would not
be any scars on his feet as an indicia that his testimony is
indeed true.
In affirming the IJ’s decision, the BIA held that “[i]t has not been shown that the [IJ]
clearly erred by holding that it was implausible that [Yomba], who was supposedly
bloody and unable to walk after this treatment, nonetheless recovered without even one
scar.” The IJ and BIA reached this conclusion without considering one shred of medical
or scientific evidence about the likelihood that blunt trauma could be administered to the
souls of one’s foot in such a way that scars would not result. Yet, that is a medical
question totally outside the competence of the IJ and the BIA. See Abdulraham v.
Ashcroft, 330 F.3d 587, 598 (3d Cir. 2003). Therefore, the conclusion that Yomba did
not testify truthfully about receiving a beating on the souls of his feet is not supported by
substantial evidence.
However, that does not alter the result because the remaining adverse credibility
determinations are supported by substantial evidence. Yomba’s testimony was rife with
inconsistencies. Moreover, he produced no credible evidence that the organization he
claimed to have founded, the Pan-African Committee on Human Rights, even existed.
Aside from his testimony, the only evidence of the organization’s existence is three
letters addressed to the president of that organization, one dated August 23, 1999, one
dated October 8, 1999,and one dated January 10, 2000. However, those letters

-- 5 of 12 --

6
undermine Yomba’s credibility rather than corroborate it.
Yomba testified that he was the president of the organization, but the letters are
neither addressed to him, nor do they even mention his name. In addition, although the
letters express sorrow about the arrest of “Monsieur le President,” the dates of the letters
do not correspond with the period during which Yomba testified he was under arrest. He
did not testify that he was in custody in August of 1999 or October of 1999. Rather, he
testified that he was arrested in mid-January 2000 for writing a letter demanding that the
director of Le Messager be released from custody. However, the letter dated January 10,
2000, refers to the arrest of “Monsieur le President” for providing information to the
newspaper L’Effort. Thus, even if the January 10, 2000 letter was intended to relate to
Yomba’s mid-January 2000 arrest, the reason for the arrest as stated in the letter differs
from the reason Yomba offered in his testimony.
The February 18, 1999 letter, purportedly written by Yomba’s wife, is yet another
inconsistency. It is addressed to the President of the National Committee of Human
Rights of Cameroon, asserts that Yomba is the victim of torture and solicits aid in
securing his release from custody. However, the date of the letter does not correspond to
Yomba’s purported custody.
Moreover, the letter states that Yomba was arrested after publishing an expose of
the living conditions of the people of Cameroon in the October 20, 1998 issue of
L’Effort Camerounais. However, Yomba did not testify that he published anything in

-- 6 of 12 --

7
October 1998 and he did not testify that he ever published anything concerning economic
conditions in Cameroon. Although this could simply be viewed as an omission if it was
the only inconsistency, we can not fault the IJ or BIA for concluding that the omission
was probative of Yomba’s candor given this record.
Yomba claims that the government of Cameroon was interested in him because he
was publishing articles detailing its abuses. However, he did not produce any such
articles and he offered no explanation for his failure to produce them.
Yomba’s testimony about the activities in June 1998 was inconsistent. His
affidavit states that he published one article in L’Effort in June 1998, and that is what he
told the asylum officer. At the hearing, he testified that in June 1998, he published one
article in L’Effort and also submitted a different article to the government. However, he
did not mention submitting anything to the government in his affidavit or his
conversation with the asylum officer. Again, given the entire record, we can not fault the
IJ or BIA for concluding that this was more than an inadvertent omission or that it is
simply the result of the conditions of his asylum interview. His actions in June 1998
purportedly resulted in his month and one-half confinement and physical torment.
Accordingly, his inability to recount the events of June 1998 consistently further
undermined his credibility.
Yomba’s testimony about his confinement was also inconsistent. In his affidavit,
he stated that he was taken from his jail cell and driven to the “hall of death,” where he

-- 7 of 12 --

For example, Yomba's testimony about the circumstances of his first release and3
the stranger who found him conflicts with his affidavit. His statement to the asylum
officer about events after his March 2002 arrest differ from his affidavit and his testimony
regarding that arrest and being taken to the morgue. There are also inconsistencies in his
account of how he obtained his visa to travel to the United States.
8
was beaten on the feet with a machete. Before the IJ, he testified that the “hall of death”
was in the same building as his jail cell. Accordingly, he could not have driven there.
The IJ certainly did not have to ignore that inconsistency in assessing Yomba’s
credibility.
Given the nature of these inconsistencies, there is clearly substantial evidence in
the record to support the adverse credibility rulings of the IJ and BIA, and, therefore, we
need not discuss the numerous other inconsistencies that also support those rulings.3
Yomba addresses these inconsistencies by arguing that the IJ improperly relied on
the asylum officer’s notes and summary of his asylum office statements in making his
adverse credibility determinations. Again, we disagree. The record before the IJ
contained both the formal Assessment to Refer and extensive typewritten notes of the
asylum officer’s interview with Yomba. We realize that those notes are not a verbatim
transcript. Nevertheless, they are quite detailed and are four single-spaced pages in
length. They contain the questions the asylum officer asked and the answers that Yomba
gave. These documents constitute a “meaningful, clear, and reliable summary of the
statements made by the applicant at the interview.” In re Matter of S- S-, 21 I&N Dec.
121, 124 (BIA 1995). The IJ was clearly entitled to consider statements reported in that

-- 8 of 12 --

9
interview summary in assessing Yomba’s credibility. Diallo v. Gonzales, 445 F.3d 624,
633 (2d Cir. 2006).
Finally, Yomba contends that the IJ failed to consider all of the evidence in the
record. Specifically, Yomba claims that the IJ failed to give proper weight to
Department of State Human Rights Report, Amnesty International Reports, and a number
of press reports about human rights abuses in Cameroon. Those documents do establish
that the government of Cameroon has a poor human rights record and that security forces
have been responsible for beating and torturing detainees and prisoners. However, given
the problematic nature of Yomba’s testimony, there is insufficient evidence to support
his claim that he was the victim of the human rights abuses that exist in Cameroon.
In sum, based on the numerous inconsistencies in the record, there was substantial
evidence to support the finding that Yomba failed to meet his burden of producing
credible evidence of a well-founded fear of persecution.
B. Frivolous asylum application.
Yomba also contends that the IJ and the BIA erred in finding that he filed a
frivolous asylum application. There are severe consequences for filing a frivolous
asylum application. INA § 208(d), 8 U.S.C. § 1158(d), provides, in relevant part:
(6) Frivolous applications
If the Attorney General determines that an alien has knowingly made a
frivolous application for asylum and the alien has received the notice under
paragraph (A)(4), the alien shall be permanently ineligible for any benefits
under this chapter, effective as of the date of a final determination on such
application.

-- 9 of 12 --

In Muhanna, we noted that INA § 208(d)(6)’s bar to any benefits is “one of the4
most extreme provisions” in immigration law and “once it is imposed may not be waived
under any circumstances.” 399 F.3d at 588 (citation and internal quotations omitted).
10
8 U.S.C. § 1158(d)(4)-(6) (emphasis added). The implementing regulation for INA §
208(d)(6), 8 U.S.C. § 1158(d)(6), provides:
For applications filed on or after April 1, 1997, an applicant is subject to
the provisions of section 208(d)(6) of the Act only if a final order by an
immigration judge or the Board of Immigration Appeals specifically finds
that the alien knowingly filed a frivolous asylum application. For purposes
of this section, an asylum application is frivolous if any of its material
elements is deliberately fabricated. Such finding shall only be made if the
immigration judge or the Board is satisfied that the applicant, during the
course of the proceedings, has had sufficient opportunity to account for any
discrepancies or implausible aspects of the claim. For purposes of this
section, a finding that an alien filed a frivolous asylum application shall not
preclude the alien from seeking withholding of removal.
8 C.F.R. § 208.20.
In Muhanna v. Gonzales, 399 F.3d 583 (3d Cir. 2005), we interpreted this
regulation as follows:
[U]nder 8 C.F.R. § 208.20, a finding of frivolousness does not flow
automatically from an adverse credibility determination in any event.
Inconsistencies between testimony and an asylum application, while
certainly relevant to a credibility determination that may result in a denial
of an applicant’s asylum claim, do not equate to a frivolousness finding
under Section 1158(d)(6), which carries with it much greater
consequences.[ ] It is because of those severe consequences that the4
regulation requires more: a finding of a deliberate fabrication of a
“material element” of an application, plus an opportunity for the alien to
account for inconsistencies.
Id. at 589 (emphasis added). Recently, in Luciana v. Attorney General, F.3d , 2007

-- 10 of 12 --

11
WL 2696865 at *7 (3d Cir. Sept. 17, 2007) we commented on the decision in In re Y- L-,
24 I&N Dec. 151 (BIA 2007), where the BIA stated the requirements for a finding of
frivolousness as follows:
(1) notice to the alien of the consequences of filing a
frivolous asylum application; (2) a specific finding by the
Immigration Judge or Board that the alien knowingly filed a
frivolous asylum application; (3) sufficient evidence in the
record to support the finding that a material element of the
asylum application was deliberately fabricated; and (4) an
indication that the alien had been afforded sufficient
opportunity to account for any discrepancies or implausible
aspects of the claim.
2007 WL 2696865 at *7 (citing 24 I&N Dec. at 155).
Here, the IJ did not find that Yomba filed a frivolous asylum application based on
his adverse credibility determinations. Rather, the IJ’s determination of a frivolous
filing, and the BIA’s affirmance of it, rested solely on the IJ’s belief that the four letters
Yomba submitted in support of his claims were fabricated, presumably by Yomba or at
his direction. The IJ reached that conclusion only because all four letters were identical
in font and format. There was no other record evidence to support a finding of
fabrication. However, the similarity of the letters may indicate nothing more than a
standardized style and/or the fact that the authors used similar software, similar word
processors/typewriters, or simply relied on a format and style that is customary for
official correspondence. The mere fact that four letters use the same font and format can

-- 11 of 12 --

We can not help but note that all of the draft opinions of the judges of this court5
are written using the same font and format.
12
not support the conclusion that the letters were fabricated. Accordingly, the finding that5
Yomba filed a frivolous application cannot stand.
VII. CONCLUSION
For the foregoing reasons, we will deny the petition for review as to Yomba’s
claims for asylum, and withholding of removal, but vacate the determination that the
asylum application was frivolous and grant the petition for review pertaining to the
frivolous application issue.

-- 12 of 12 --