Djenaba Camara v.  JOHN ASHCROFT, in his official capacity as Attorney General of the United States

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 DJENABA CAMARA,
Petitioner,
v.
No. 03-1435  JOHN ASHCROFT, in his official
capacity as Attorney General of the
United States,
Respondent. 
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A78-579-617)
Argued: June 4, 2004
Decided: August 6, 2004
Before WILKINS, Chief Judge, and NIEMEYER and
TRAXLER, Circuit Judges.
Petition for Review granted and agency order and decision vacated
and remanded by published opinion. Judge Niemeyer wrote the opin-
ion, in which Chief Judge Wilkins and Judge Traxler joined.
COUNSEL
ARGUED: Christopher James Flack, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Petitioner. Catherine Yvonne Hancock, Civil
Division, Appellate Staff, UNITED STATES DEPARTMENT OF
JUSTICE, Washington, D.C., for Respondent. ON BRIEF: Susan G.

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Lee, Paul S. Feira, W. Daniel Deane, ARNOLD & PORTER, L.L.P.,
Washington, D.C., for Petitioner. Peter D. Keisler, Assistant Attorney
General, Thomas M. Bondy, Colette G. Matzzie, Civil Division,
Appellate Staff, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
OPINION
NIEMEYER, Circuit Judge:
Djenaba Camara’s claims for asylum under 8 U.S.C. § 1158(b), for
withholding of removal under 8 U.S.C. § 1231(b)(3), and for relief
under the United Nations Convention Against Torture were denied
based on the Immigration Judge’s finding that Camara’s testimony
was not credible. Because the Immigration Judge failed to consider
other, independent evidence presented by Camara and applied the
incorrect standard for relief under the Convention Against Torture, we
grant Camara’s Petition for Review, vacate the order of the Board of
Immigration Appeals (as well as the Immigration Judge’s decision,
inasmuch as it was made the final agency determination), and remand
for further proceedings.
I
Djenaba Camara, a 34-year-old Guinean national, entered the
United States on a tourist visa on April 22, 2000, stating that she was
coming to attend a wedding but actually intending to seek asylum
here. On August 2, 2000, she filed a Form I-589 with the INS,1 apply-
ing for asylum and for withholding of removal, stating that she was
eligible for asylum "because [she] was raped, arrested, imprisoned
and tortured on several occasions in [her] home country for being
politically active in the opposition party . . . RPG." Camara also
applied for relief under Article 3 of the United Nations Convention
1The Immigration and Naturalization Service ("INS") was the name of
the agency during the proceedings in this case. While we continue to
refer to the agency as the INS, it has since been renamed and reorga-
nized. See 6 U.S.C. § 291; 8 C.F.R. § 1.1(d).
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Against Torture and Other Forms of Cruel, Inhuman or Degrading
Treatment or Punishment, which was implemented by § 2242 of the
Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No.
105-277, Div. G, 112 Stat. 2681, 822 (Oct. 21, 1998) (codified at 28
U.S.C. § 1231 note) ("Convention Against Torture" or "CAT").
Camara attached to her application for asylum numerous documents,
including a personal statement of her circumstances, her membership
card for the RPG, a warrant for her arrest that led to her imprison-
ment, a warrant for her arrest following her escape from prison, and
official statements about the political conditions in Guinea. Camara’s
application was referred to the Immigration Court by the INS.
At her asylum hearing, Camara testified that she was a member of
a political party known as the "Rassemblement du peuple de Guinee"
(Rally of the Guinean People) ("RPG"), which not only is a political
party but also is composed mostly of the Malinke ethnic group to
which Camara belongs. The government is composed of members of
the Soussou ethnicity. Camara claimed that, because of her participa-
tion in activities of the RPG, she was arrested, imprisoned and tor-
tured on three separate occasions, beginning in 1993.
Camara testified that her first arrest was in 1993 for demonstrating
with students, after which she was imprisoned at the Central Prison
in Kankan, Guinea, for two weeks. She asserted that she was "beaten
every day, every morning" and that because she did not have money
to bribe the guards, they would not release her unless she had sex with
one of them. Eventually, she said that she decided to do so and was
released.
She testified that she was imprisoned a second time, in 1996, after
an unsuccessful coup d’état. On this occasion, she said that she was
taken to Camp Alpha Yaya in Conakry, Guinea, a military camp,
where she was accused of having participated in the coup attempt.
She testified that she was detained a little over a month at Camp
Alpha Yaya and again beaten on the hands and the feet in order to
extract a confession. When the government, however, determined that
the RPG had not organized the coup d’état, Camara was released.
Camara testified that her third imprisonment followed the Guinean
presidential election on December 14, 1998. On the day after the elec-
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tion and before the votes were counted, incumbent President Lansana
Conté had several opposition leaders arrested, including Alpha
Condé, the leader of the RPG. In response to President Conté’s inter-
ference with the election and the imprisonment of Condé, the women
of the RPG organized protest marches, in which some women
marched naked. Camara presented a Canadian article describing a
protest march that took place on December 21, 1998, but she stated
that she participated in a march on December 28, 1998. Following
this demonstration, on January 2, 1999, a warrant for Camara’s arrest
was issued, and on January 5 Camara was arrested and taken to Camp
Alpha Yaya, where she spent two weeks before being transferred to
the Central Prison of Conakry. After four months at the Central
Prison, Camara was transferred back to Camp Alpha Yaya for another
seven months. Her imprisonment totaled 11 months, during which she
claimed that she was beaten, tortured, and raped. She also stated that
she miscarried a pregnancy during this detention. (In her personal
statement accompanying her Form I-589, however, she had described
this miscarriage in detail as happening during her 1996 imprisonment
at Camp Alpha Yaya.) After her husband bribed officials and con-
tacted an underground member of the RPG, who was also a police
commissioner, a guard allowed Camara to escape from Camp Alpha
Yaya on December 23, 1999. Camara provided a copy of an official
document giving notice of her escape and a "search warrant" directing
that she be found, apprehended, and brought to the Central Prison in
Conakry.
Camara provided evidence of several incidents following her
escape that revealed that government officials were seeking to rearrest
her. In the last of these incidents, the military broke into the home of
a friend to search for her, and the friend died of a stroke. After that
incident, Camara decided that she would have to leave Guinea. The
police commissioner who had helped Camara escape from prison in
December 1999 also helped her leave the country, telling her that if
she knew anyone at the District Court, she should go to that person
and have him obtain copies of various papers to show that she had
been persecuted by the government. Her mother’s cousin worked at
the District Court, and Camara engaged the cousin to obtain copies
of her original arrest warrant, her notice of escape, and the warrant
for her arrest following her escape.
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In the application form she filed with the INS, Camara stated that
she had no children, despite the fact that she had left two children in
Guinea with her grandmother. She testified at her hearing before the
IJ that the reason she lied about her children on the asylum applica-
tion was that she had received advice from a Guinean friend who had
been in the United States longer than she had. He told her to say that
she had no children on her initial asylum application because if she
admitted to having children, "the Immigration Service would consider
[her] a bad mother for having left [her] children there." She supported
this explanation at the hearing with a detailed affidavit from the friend
who had wrongly advised her.
Camara also presented the testimony of an expert psychologist who
specialized in evaluating and treating torture victims. He termed
Camara "highly credible" and stated, "I know she’s a victim of tor-
ture. . . . [I]t’s not just the reporting, it’s that her symptoms are so per-
vasive as to govern her appearance, her ability to talk about
anything."
Camera introduced into the record a letter from the current leader
of the RPG, Mohamed Diané, who stated that Camara had been
arrested for participating in political activities with the RPG. She also
introduced State Department country reports for Guinea, which stated
that the Guinean government is oppressive and dictatorial, with a
"poor" record on human rights, especially in terms of abuses against
political dissidents. The reports stated that during the December 1998
election in Guinea, the leader of the RPG, along with the leaders of
other opposition parties, was arrested and imprisoned for two and a
half years for sedition. RPG members protesting these elections were
shot and killed. The reports indicated that officials acting under the
authority of the Guinean government used torture against prisoners
and detainees, stating:
There were . . . reports that security forces often use torture
and beatings to extract confessions and employ other forms
of brutality. . . . Local human rights organizations and for-
mer detainees stated that some prisoners are bound and hung
by their feet before being beaten. . . . Prison conditions are
inhuman and life threatening. . . . Prisoners reported threats,
beatings, and harassment by guards. . . . During [recent]
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municipal elections, police arrested and detained 44 persons,
including children, women, old men, and an imam. They
were taken to a military camp, where they reportedly were
stripped, threatened, beaten, and tortured.
Following Camara’s hearing, the Immigration Judge ("IJ") ren-
dered an oral opinion denying Camara’s claim to refugee status, citing
six instances in Camara’s testimony and in her initial application for
asylum that the IJ characterized as "a series of inconsistencies and
improbabilities." The IJ stated that these flaws in the testimony gave
her "serious concerns about the respondent’s credibility." After deny-
ing Camara asylum because of this adverse credibility determination,
the IJ also denied Camara’s claims for withholding of removal under
§ 1231(b)(3) and for relief under the Convention Against Torture.
Camara appealed her claims to the Board of Immigration Appeals
("BIA"), and the BIA used its streamlined procedure to affirm the IJ’s
order of removal without an opinion. The BIA’s order stated: "The
Board affirms, without opinion, the results of the decision below. The
decision below is, therefore, the final agency determination. See 8
C.F.R. § 1003.1(e)(4)."
From the Board’s decision, Camara filed this petition for review,
in which she contends (1) that the IJ erred in discrediting her testi-
mony in support of her claims and in failing to consider her indepen-
dent evidence that alone could establish her eligibility for asylum and
for withholding of removal, and (2) that the IJ’s adverse credibility
finding was insufficient to defeat her claim for relief under the Con-
vention Against Torture.
II
The courts of appeals are granted jurisdiction to review final orders
of removal, 8 U.S.C. § 1252(a)(1), and final orders in cases such as
the one before us are generally made by the BIA following appeal
from the decision of the IJ.
In this case, the BIA followed a streamlined process for reviewing
IJ orders that was put in place in 1999 to increase efficiency and to
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reduce the existing backlog of cases. Accordingly, the BIA, through
a single member, affirmed without opinion the "results" of the IJ’s
decision and ruled that the IJ’s decision itself was the "final agency
determination." Regulation 1003.1(e)(4), to which the BIA referred,
authorizes an affirmance by a single board member without opinion
when (1) the result reached by the IJ is correct; (2) any errors by the
IJ are "harmless or nonmaterial"; and (3) the issues on appeal are
squarely controlled by precedent, or the factual and legal issues are
not so substantial that a written opinion is warranted. See 8 C.F.R.
§ 1003.1(e)(4). The regulation also provides that when the BIA
approves the result reached by the IJ, it does not "necessarily imply
approval of all of the reasoning." See id.
Under the streamlined process, the BIA’s opinion thus concluded
that the IJ’s result was correct and that, if her reasoning was in error
in any respect, the error was harmless. And for purposes of review,
the IJ’s reasoning became "the final agency determination." Accord-
ingly, while we review the BIA’s final order for correctness, we
review the IJ’s decision for the reasoning, recognizing that the Board
has concluded that any error in reasoning is "harmless or nonmate-
rial." See 8 C.F.R. § 1003.1(e)(4); Khattak v. Ashcroft, 332 F.3d 250,
253 (4th Cir. 2003) (noting that when the "streamlining regulations
are employed," the IJ’s decision is "essentially the decision under
review"); see also Falcon Carriche v. Ashcroft, 335 F.3d 1009, 1013
(9th Cir. 2003) (noting that "[s]treamlining thus elevates the IJ’s deci-
sion to the final agency action that is reviewed by the court of
appeal"); Georgis v. Ashcroft, 328 F.3d 962, 967 (7th Cir. 2003)
(same); Single Board Member Summary Affirmance Without Opin-
ion, 64 Fed. Reg. 56,135, 56,138 (Oct. 18, 1999).
We conduct our review of the final agency determination, whether
streamlined or not, under the same standard — we uphold the agen-
cy’s decision if it is not "manifestly contrary to law." 8 U.S.C.
§ 1252(b)(4)(C). And agency findings of fact "are conclusive unless
any reasonable adjudicator would be compelled to conclude to the
contrary." Id. § 1252(b)(4)(B); see also INS v. Elias-Zacarius, 502
U.S. 478, 481 n.1, 483-84 (1992). We also defer to credibility find-
ings that are supported by substantial evidence. Figeroa v. INS, 886
F.2d 76, 78 (4th Cir. 1989). Though broad, this deference is not abso-
lute:
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Although an Immigration Judge’s credibility findings are
granted substantial deference by reviewing courts, a trier of
fact who rejects a witness’s positive testimony because in
his or her judgment it lacks credibility should offer a spe-
cific, cogent reason for his disbelief.
Id. (internal quotation marks and citations omitted).
III
On her claims for asylum under 8 U.S.C. § 1158(b) and for with-
holding removal under 8 U.S.C. § 1231(b)(3), Camara contends that
the IJ erred by relying on an unsupported credibility finding and by
overlooking objective evidence beyond the discredited evidence.
Under § 1158(b), the Attorney General has the discretion to admit
into the United States an applicant for asylum if the applicant first
establishes that she is a "refugee." A "refugee" is defined as one who
is "unable or unwilling" to return to her native country because of
"persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or polit-
ical opinion." 8 U.S.C. § 1101(a)(42). If the applicant establishes that
she has suffered past persecution, a presumption arises that she has
the requisite level of fear of persecution. 8 C.F.R. § 208.13(b)(1).
That presumption can be rebutted by the INS if the INS can show by
a preponderance of the evidence that conditions in the native country
have changed such that if the applicant were to return, she would no
longer have a well-founded fear persecution. Id. § 208.13(b)(1)(i)(A);
see also Gonahasa v. INS, 181 F.3d 538, 541-42 (4th Cir. 1999). If
an applicant cannot establish past persecution, she must prove both
the subjective and the objective components of "a well-founded fear":
that the applicant is subjectively afraid and that the fear is objectively
well-founded.
An application for withholding of removal under 8 U.S.C.
§ 1231(b)(3) is closely related to an application for asylum. It differs
in that if the applicant qualifies for withholding of removal, the Attor-
ney General cannot remove her to her native country. A withholding-
of-removal claim carries a higher standard of proof than does an asy-
lum claim. An applicant for withholding of removal must establish
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that if she were sent back, it is more likely than not that her "life or
freedom would be threatened . . . because of [her] race, religion,
nationality, membership in a particular social group, or political opin-
ion." Id. § 1231(b)(3)(A); 8 C.F.R. § 208.16(b)(1). Because the bur-
den of proof for withholding of removal is higher than for asylum —
even though the facts that must be proved are the same — an appli-
cant who is ineligible for asylum is necessarily ineligible for with-
holding of removal under § 1231(b)(3).
In contending that the IJ erred in disposing of her claims for asy-
lum and for withholding of removal on the basis of credibility,
Camara argues that the IJ (1) relied only on minimal, irrelevant, and
immaterial discrepancies, some of which were no more than specula-
tion and were not borne out by the record, and (2) failed to consider
independent, objectively established evidence that both corroborated
her testimony and independently proved her claims. Camara contends
that the six justifications that the IJ put forth for her adverse credibil-
ity determination are "simply insufficient" to discredit her testimony.
In particular, Camara points to the following determinations by the IJ:
First, Camara stated on her initial asylum application that she had
no children, and it was only when the government found her visa
application with different information that she admitted she had two
children and had lied about them on her asylum application. Camara
explained that she omitted her children on the advice of a Guinean
friend who told her that if she admitted to having children, "the Immi-
gration Service would consider [her to be] a bad mother for having
left [her] children there."
Second, on her initial asylum application, Camara said she miscar-
ried a pregnancy while in prison in 1996, but in testimony she stated
that she actually miscarried during her 1999 prison stay.
Third, to corroborate her story of being imprisoned and tortured for
participating in a December 1998 protest against the government
where members of RPG wore minimal clothing to show their disre-
spect, Camara submitted a Canadian newspaper article documenting
one such protest. The date Camara gave for the protest she attended
was December 28, while the article documented a protest on Decem-
ber 21.
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Fourth, Camara produced a letter from Mohamed Diané, a leader
in the RPG, to corroborate her testimony that she had been arrested
three times — once after participating in a demonstration, once after
a failed coup attempt of which she was not a part, and once after she
participated in a women’s demonstration to protest the RPG leader’s
detention. As translated from the French, Diané’s letter says, "She has
been arrested three times for having participated in RPG political
meetings. Lately, during RPG women protests . . . , Mrs. Djenaba
Camara was arrested one more time . . . ." The IJ decided that "this
letter d[id] not corroborate these three arrests" because Diané reported
four arrests and because he referred to "meetings," not demonstra-
tions.
Fifth, Camara testified that when she was planning to leave Guinea
and try to find asylum in the United States, a friend told her that she
would need to get documentation of persecution by the government.
She testified that the friend "told [her] to go to the District Court to
see if [she] could know somebody there who would help me [her]."
She said that because her mother’s cousin worked at the courthouse,
she approached him to obtain her papers. The Immigration Judge
found "improbable" the idea that Camara would go to the District
Court to get the documents, stating, "It simply makes no sense to this
Court that someone who had just escaped from prison would then
present themselves to a dictatorial Government legal institution."
Sixth, the IJ found it "curious" that the notice of escape presented
by Camara stated that she was "condemned" on January 5 by the
Court of Justice, while Camara testified that she was never brought
before a judge.
We agree with Camara in part, concluding that several of the "dis-
crepancies" fail to support the IJ’s finding on credibility. First, the
one-week discrepancy between the article’s date for the women’s pro-
test and the date Camara gave is not an inconsistency. There was evi-
dence that the women conducted multiple protests, including a State
Department report that there was "civil unrest before and after elec-
tion day." And even though the Canadian news article wrote of a pro-
test march on December 21, Camara was firm that her participation
in a protest march occurred on December 28, a fact corroborated by
the warrant that thereafter issued for Camara’s arrest. Second, the let-
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ter from party leader Diané corroborated Camara’s account generally,
and the IJ put far too much importance on the translated word "meet-
ings" in deciding that this letter was inconsistent with Camara’s testi-
mony referring to protests or demonstrations. Third, the IJ’s disbelief
of Camara’s explanation for obtaining her criminal papers was based
only on speculation; there is nothing implausible about the idea that
Camara would approach a relative for help in her troubles, even if it
meant entering a courthouse as an anonymous visitor. Fourth, the IJ’s
assumption about the Guinean justice system — that accused crimi-
nals are never "condemned" without a hearing before a judge — was
unsupported and therefore does not support an adverse credibility
determination. The copies of the official action taken by the Guinean
government show that a warrant for Camara’s arrest issued on Janu-
ary 2, 2000, that Camara was arrested on January 5, and that Camara
was "condamné," meaning "convicted," on January 5.
The other two inconsistencies are, however, more substantial.
Although Camara gave a plausible explanation for failing to acknowl-
edge her children on her initial asylum application, she did state an
untruth, and the IJ was free to reject her explanation. As for the mis-
dating of Camara’s miscarriage, this might have been considered a
minor detail if not for the fact that she credited it as having "renewed
[her] will to fight against the Conté government." If the miscarriage
instead happened during her 1999 imprisonment, it would actually
have been followed by a decision to leave the country in fear for her
life. Camara compounded the misstatement by adding that through
this miscarriage she "lost the only pregnancy [she] had ever ha[d],"
while in fact, as she revealed in her later testimony, she had already
given birth to two children. Her account of a miscarriage is not
merely incidental to her asylum claim, in that it is one of the circum-
stances she recounted to show the extent of her persecution.
Because of these two inconsistencies, we cannot say that we are
"compelled to conclude" that Camara’s testimony was entirely reli-
able. See 8 U.S.C. § 1252(b)(4). There was substantial evidence on
which the IJ could support her adverse credibility determination. See
Figeroa, 886 F.2d at 78.
But our affirmance of the IJ’s adverse credibility finding does not
end our review of the IJ’s conclusion that Camara was not statutorily
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eligible for asylum as a refugee. It is true that "an unfavorable credi-
bility determination is likely to be fatal to [an asylum] claim," Rusu
v. INS, 296 F.3d 316, 323 (4th Cir. 2002), because often the applicant
must establish a "well-founded fear" of persecution, which contains
both subjective and objective components, and the subjective element
cannot generally be proved other than through the applicant’s testi-
mony. Thus, a determination that the applicant’s testimony is not
credible will generally defeat the claim. In cases where the applicant
can prove actual past persecution, however, a presumption arises that
she has the requisite level of fear of persecution, and thus she need
not prove the subjective component of "well-founded fear." See 8
C.F.R. § 208.13(b)(1).
In this case, quite apart from Camara’s somewhat discredited testi-
mony, Camara presented independent evidence, which the IJ did not
discredit, demonstrating Camara suffered past persecution for her
political beliefs.2 Camara presented a "Notice of Escape," dated
December 25, 1999, which documented her escape from Camp Alpha
Yaya on December 23, 1999. This document demonstrated that
Camara had been imprisoned, which indisputably can constitute per-
secution. See Capric v. Ashcroft, 355 F.3d 1075, 1084 (7th Cir. 2004).
She also offered evidence to establish that she was imprisoned "on
account of . . . political opinion" through (1) her membership in the
RPG, as shown by her membership card and the letter from Diané; (2)
the reason given for her conviction on the warrant and in the letter
from Diané, and (3) the State Department reports recording the brutal
suppression of the RPG, including the imprisonment of its members.
2While not explicitly rejecting this evidence, the IJ expressed suspicion
about the documents Camara obtained from the courthouse only because
her story of obtaining them from her cousin "ma[d]e[ ] no sense." This
would appear, however, to be mere speculation. There was no evidence
in the record contradicting Camara’s account of having obtained the doc-
uments, and there is nothing inherently implausible about her story. She
did not say that she "presented" herself at the courthouse, as the IJ stated,
but that she went as a private visitor to the office of a relative who could
help her. The IJ’s skepticism about Camara’s explanation for having
obtained the documents based only on this speculation was not, there-
fore, a sufficient basis on which to rest a finding that the documents were
forged or otherwise lacked authenticity.
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The arrest warrant she produced, dated January 2, 1999, indicated
Camara was wanted for "disturbing the public order" on December
28, 1998. While "disturbing the public order" could mean many
things, other documents provided strong circumstantial evidence that
here, the "disturbance" was actually the political protest about which
Camara testified. In addition, the letter from RPG leader Diané stated
that Camara had been arrested for participating in "RPG women pro-
tests against the abduction and sequestration of the RPG’s leader."
Diané was referring to the arrest and imprisonment of Alpha Condé,
the then-leader of RPG, which the State Department reported as hav-
ing occurred in December 1998. The State Department also reported
"civil unrest before and after election day," December 14, and that the
arrest of Condé "led to street protests" that "result[ed] in the arrest and
detention of many protestors."
This independent evidence, taken together, provided strong circum-
stantial evidence that Camara was imprisoned for a political expres-
sion of opposition to the ruling government. The IJ completely
ignored this evidence, instead rejecting Camara’s asylum petition
solely on the basis of the adverse credibility determination.
This independent evidence could also serve as a basis for Camara’s
application for withholding of removal under 8 U.S.C. § 1231(b)(3),
which requires a showing that it is more likely than not that if the
applicant were removed to her native country, her "life or freedom
would be threatened." As in an asylum claim, if the applicant has
established a past threat to life or freedom, a rebuttable presumption
arises that the threat would likely recur if she were sent back. See 8
C.F.R. § 208.16(b)(1)(i). Furthermore, in this case, along with the evi-
dence of past imprisonment for political reasons, Camara has pre-
sented the warrant for her arrest that issued two days after her escape
and that stated that police should "search [for Camara] very actively,
to apprehend and to bring [her] before the manager of the Central
Prison of Conakry." The warrant also stated that Camara was "con-
demned," or convicted, on January 5, 1999 "for disrupting the public
order" and that she "escaped on December 23, 1999." She thus pro-
vided evidence that, if returned to Guinea, her freedom would be
threatened as a result of the same "disrupt[ion of] the public order"
that circumstantial evidence suggests was actually a political demon-
stration in the wake of a presidential election.
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In sum, while we do not disturb the IJ’s factual finding that
Camara’s recollections may not have been wholly trustworthy, we
nevertheless conclude that the IJ erroneously overlooked Camara’s
other evidence in denying her application for asylum and for with-
holding of removal. Accordingly, we vacate the BIA’s order on these
claims, as well as the IJ’s decision inasmuch as it was made the final
agency decision, and remand for further consideration.
IV
Camara also contends that the IJ relied on improper or insufficient
grounds to reject her claim under the Convention Against Torture. In
particular, she contends that the IJ erred "by treating an adverse credi-
bility determination made in connection with Petitioner’s asylum
claim as fatal to Petitioner’s CAT claim and by failing to give the
CAT claim meaningful consideration independent of the asylum
claim." She argues that the CAT claim has a "separate and distinct
legal standard" that requires "an independent and meaningful analy-
sis," which the IJ did not conduct.
In her decision, the IJ articulated, over the span of several pages,
why she thought that Camara’s testimony should be discredited, con-
cluding:
Based on what this Court perceives to be a series of incon-
sistencies and improbabilities, it finds that the respondent
has failed to meet her burden in establishing either past per-
secution, or a well-founded fear of future persecution . . . .
On this finding, the IJ denied Camara’s application for asylum and for
withholding of removal. Then the IJ proceeded to employ this finding,
without more, to decide the CAT claim, disposing of it in one sen-
tence:
For the aforementioned reasons, this Court also finds that
this Respondent has failed to meet her burden in establish-
ing that it is more likely than not that she would be tortured
as contemplated by the Torture Convention were she to
return to Guinea.
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As we noted above, an alien seeking asylum must prove either past
persecution or a well-founded fear of future persecution "on account
of" her membership in a particular protected class. The standard for
relief under the CAT, however, is different. The applicant need not
prove the reason for torture, nor that she has a well-founded fear of
it, but 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)(1), (2). Because there is no subjective component for
granting relief under the CAT, the adverse credibility determination
on which the IJ relied to deny Camara’s asylum claim would not nec-
essarily defeat her CAT claim. Aside from Camara’s own testimony,
she provided independent evidence from which to conclude that it
was more likely than not that she would be tortured upon her return
to Guinea. She provided State Department country reports showing
that the Guinean government engages in torture of prisoners and bru-
tal repression of the political party of which Camara is a member —
reports that courts have recognized as important in determining
whether an alien is entitled to relief under the CAT. See Zubeda v.
Ashcroft, 333 F.3d 463, 475 (3d Cir. 2003); Kamalthas v. INS, 251
F.3d 1279, 1283-84 (9th Cir. 2001). She also presented the testimony
of a psychologist with experience evaluating torture victims, who
concluded with certainty that Camara had been tortured in the past.
Finally, Camara presented documentary evidence that she had
escaped from prison and was now wanted by the police. A currently
outstanding warrant states that Camara should be "apprehended" and
taken to the Central Prison in Conakry. Thus, we agree with Camara
that the IJ’s adverse credibility determination was insufficient to sup-
port the legal conclusion that Camara was ineligible for relief under
the CAT.
Moreover, in not considering all the evidence relative to Camara’s
CAT claim, the IJ failed to follow the INS’s own regulations for
assessing such claims, which provide that "all evidence relevant to the
possibility of future torture shall be considered, including . . .
[e]vidence of past torture inflicted on the applicant; . . . evidence of
gross, flagrant or mass violations of human rights within the country
of removal, where applicable; and [o]ther relevant information
regarding conditions in the country of removal." 8 C.F.R.
§ 208.16(c)(3). Explicitly basing her conclusion solely on the adverse
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credibility determination, the IJ failed to address "all evidence rele-
vant to the possibility of future torture."
Our conclusion that the CAT has a standard independent from the
standard for determining an asylum claim is consistent with the hold-
ings of other courts of appeals, all of which have held that an adverse
credibility determination cannot alone preclude protection under the
CAT:
Because the INS’s regulations require it to consider all rele-
vant evidence of the possibility of torture, and the CAT and
asylum analyses focus on different elements and therefore
must be treated independently, we hold that the INS may not
deny an alien’s CAT claim solely on the basis of its determi-
nation that the applicant’s testimony is not credible.
Ramsameachire v. Ashcroft, 357 F.3d 169, 184 (2d Cir. 2004); see
also Zubeda, 333 F.3d at 476 (3d Cir.); Kamalthas, 251 F.3d at 1284
(9th Cir.); Mansour v. INS, 230 F.3d 902, 908 (7th Cir. 2000). Of
course, this assumes that the applicant has presented other evidence
to support her claim.
For the foregoing reasons, we also vacate the IJ’s denial of
Camara’s claim for relief under the CAT and remand for further con-
sideration.
Because of the nature of the rulings that we have vacated, we rec-
ommend that the BIA recommend that the Chief Immigration Judge
schedule this case on remand before a different IJ. Cf. Georgis v. Ash-
croft, 328 F.3d 962, 970 (7th Cir. 2003).
VACATED AND REMANDED
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