Jacob ETA-NDU; Catherine Eta-Ndu; Danielle Eta-Ndu; and Gwladys Eta-Ndu, Petitioners, v. Alberto GONZALES, Attorney General of the United States of America, Respondent, 411 F.3d 977

BENTON, Circuit Judge. Jacob Eta-Ndu, Catherine Eta-Ndu and two of their children — Cameroon natives — challenge a final order of the Board of Immigration Appeals (“BIA”) affirming a departure order issued by the immigration court. Jurisdiction is proper under 8 U.S.C. § 1105a(a) (1994), because the proceedings commenced before April 1, 1997, with the BIA decision issued after October 30, 1996. See Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), repealing 8 U.S.C. § 1105a (1994). The BIA is affirmed. I.

Facts Jacob Eta-Ndu entered the United States with a non-immigrant student visa on September 8, 1991, to attend the University of Minnesota. His wife Catherine and children followed on a derivative visa. On August 1, 1995, deportation proceedings commenced with an Order to Show Cause. The Order alleged Jacob Eta-Ndu violated his non-immigrant status by failing to attend the University after September 1994, making the family deportable. The Eta-Ndus admitted the factual allegations, including deportability, but renewed a previous application for asylum or withholding of deportation.

Etu-Ndu claims he, his father, and his uncle were members of the Socialist Democratic Front (“SDF”), an opposition party to the ruling party, the Cameroon Peoples’ Democratic Movement. Eta-Ndu asserts that his family is a “social group” within the meaning of asylum laws, and he has a “political opinion” imputed from family associations. Thus, he argues his own political opinion and membership in a particular social group (an SDF-supportive family) subjected him to past persecution, and makes him a target for future persecution.

At the first formal deportation hearing, Eta-Ndu testified that between 1990 and 1991, while living in Cameroon, he participated in mobilizing people and other grassroots work for the SDF. During this time, his home was subjected to midnight searches by Cameroon authorities — allegedly looking for SDF documents — and he was detained for over three hours of questioning, after being shoved to the ground and kicked by Cameroon officials.

Eta-Ndu also testified that, in 1994, his uncle was murdered because of his SDF affiliation; shortly after the murder his father received death threats; his father’s business mysteriously burned down; and, ultimately, his father and two brothers fled to Nigeria. Catherine Eta-Ndu testified that the government ended her husband’s student-salary, without explanation, and refused to reinstate it, after her request. She suspected it was due to her husband’s SDF affiliation.

She admitted that her mother and father, and a number of siblings — • although not directly involved in any political matters — live peaceably in Cameroon. Both Jacob and Catherine also testified to having no trouble renewing their passports. Dr. Milton Henry Krieger, an expert on Cameroon politics, also testified at the first deportation hearing. He described the SDF as the most effective opposition group in Cameroon, and noted shootings, arrests, and other adverse action by the government against SDF members. According to Dr.

Krieger, SDF activists are well known throughout the county, and a murder of a known activist “would be exactly the sort of thing that the independent press, The Herald in particular reporting from Manfe would pick up .... ” Dr. Krieger further explained that the SDF is a recognized, established political party with “fairly substantial” membership records, which would be able to verify membership of Eta-Ndu, his father, and uncle. He did note, however, membership may not be available from some remote areas, although he could not speak for Mr. Eta-Ndu’s home base, Mamfe. Dr.

Krieger noted that Mamfe is a particularly dangerous area for the SDF, although he admitted that a mere card-carrying SDF member is probably safe in Cameroon today. He further testified that while he has no personal knowledge, the uncle’s death occurred in an area where such episodes infrequently come to light and could likely be due to SDF affiliation. At the close of the testimony, the immigration judge (“IJ”) requested confirmation from the SDF of Eta-Ndu’s SDF-related activities, documentation of the uncle’s death, and the burning of his father’s business.

In response, Eta-Ndu submitted two letters to the IJ, both typed, allegedly from SDF officials — one letter from Professor Tonyi Mbu-Agbor, of Mamfe, dated March 7, 1998; and a second letter from Dr. Ndi Christopher, of Bambili, dated March 4, 1998. Eta-Ndu also submitted letters from his father, brothers, and cousin (also a Cameroon magistrate) supporting his allegations; a police report about his uncle’s murder; and a letter from the local Cameroon police officer who sent the report to Eta Ndu. When the hearing reconvened, over two months later, the IJ admitted the letters and the police report into evidence.

The letter from the father living in Nigeria first raised suspicion, because it was mailed from New York City, New York. The IJ also noticed that the letters from the SDF were typed on plain paper, without official letterhead — unlike letters confirming SDF membership for this IJ in other cases. The IJ further noted that the SDF letters were apparently typed on the same typewriter, mailed from the same place (Yaounde) on the same day. The IJ requested forensic analysis of the SDF letters, which concluded they came from the same typewriter. Eta-Ndu offered several explanations.

As to his father’s letter, he testified that his father found a person in Nigeria who was traveling to the United States to mail the letter, because mail is so slow in Nigeria. Eta-Ndu submitted a letter from his father confirming this fact. As to the SDF letters, Eta-Ndu testified he had no knowledge of how the letters were prepared. Eta-Ndu did submit a letter from Dr. Christopher, explaining that he had no access to a typewriter in his office, requiring that all letters be typed by the secretary at the SDF’s provincial office in Ba-menda. Dr.

Christopher speculated that the second letter from Professor Mbu-Agbor was sent to the same place for typing, since he also likely lacked access to a typewriter. Finally, Etu-Ndu explained that the same postmarks were likely due to the fact that residents in Bamenda and Mamfe often mail letters close to an international airport, like Yaounde, because mail is also slow in their hometowns. Dr. Krieger, in an affidavit, stated he had heard about haphazard mail service and inaccurate postmarking in Cameroon, but had “no personal experience to confirm this.” II.

Agency Decisions Reviewing the evidence, the IJ concluded that Eta-Ndu did not present sufficient proof of past persecution. As for future persecution, the IJ found implausible Eta-Ndu’s explanations about the SDF letters. The IJ also expressed concerns with the evidence of the uncle’s murder, in light of Dr. Krieger’s testimony that it would be “exactly” the sort of thing the independent press would pick up.

Although the IJ did not make a specific adverse credibility finding, he found Eta-Ndu’s credibility “seriously shaken” and concluded that because Etu-Ndu did not present objective, corroborating evidence he failed his burden of proof. On appeal, the BIA affirmed the IJ’s ruling ’ that Eta-Ndu’s experiences in Cameroon do not rise to a level of past persecution.

The BIA then affirmed the IJ as to future persecution, focusing on the two disputed letters: The forensic analysis reveals that two letters were typed on the same typewriter, although allegedly sent by two different branches of the SDF located in different provinces of Cameroon. [Eta-Ndu] submitted a letter from the author of one of the letters stating that his office sends letters to a typing school to be typed. The Immigration Judge found that the explanation was unconvincing.

We are not persuaded that the Immigration Judge’s 'conclusion is unreasonable. [Eta-Ndu] did not supply a statement from the author of the other letter, or from anyone in the location where that letter originated, to confirm that the other branch also uses the same typing school. In addition, we note that [Eta-Ndu] has not supplied a statement from the typing school to confirm that the school receives correspondence from both branches, types the correspondence, and returns the documents to the branches for a signature.

The BIA also declined to review additional evidence submitted by Eta-Ndu after the IJ’s decision. III. Asylum and Withholding of Deportation Eta-Ndu contends that the BIA erred as a matter of law in affirming the IJ’s decision that Eta-Ndu failed to establish a “well-founded fear of persecution” on account of his political opinion or social group membership. “Because the BIA essentially adopted the IJ’s opinion while adding some of its own reasoning, we review both decisions.” Krasnopivtsev v. Ashcroft, 382 F.3d 832, 837 (8th Cir.2004), citing Siong v. INS, 376 F.3d 1030, 1036 (9th Cir.2004); Chand v.

INS, 222 F.3d 1066, 1072 n. 7 (9th Cir.2000). Both the IJ and the BIA denied asylum and withholding of deportation, finding Eta-Ndu did not meet his burden of proof. This denial must be upheld if “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” INS v.

Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992), quoting 8 U.S.C. § 1105a(a)(4) (1994). “[This] standard is a deferential one, requiring a reviewing court to uphold a denial of asylum unless an alien demonstrates ‘that the evidence he presented was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.’ ” Nyama v. Ashcroft, 357 F.3d 812, 816 (8th Cir.2004), quoting Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. Credibility determinations are upheld if supported by specific, cogent reasons for disbelief. Perinpanathan v.

INS, 310 F.3d 594, 597 (8th Cir. 2002) (quotation omitted). However, this court is “not at liberty to reweigh the evidence.” Hasalla v. Ashcroft, 367 F.3d 799, 803 (8th Cir.2004), citing Feleke v. INS, 118 F.3d 594, 598 (8th Cir.1997). Nor may this court “reverse even a decision that we find to be clearly erroneous. Rather, we must affirm the BIA’s factual decisions unless, after having reviewed the record as a whole, we determine that it would not be possible for a reasonable fact-finder to adopt the BIA’s position.” Eusebio v. Ashcroft, 361 F.3d 1088, 1091 (8th Cir.2004), citing Menendez-Donis v.

Ashcroft, 360 F.3d 915, 918—19 (8th Cir.2004) (citation omitted). See Dia v. Ashcroft, 353 F.3d 228, 249 (3rd Cir.2003) (en banc) (“If a reasonable fact finder could make a particular finding on the administrative record, then the finding is supported by substantial evidence. Conversely, if no reasonable fact finder could make that finding on the administrative record, the finding is not supported by substantial evidence.”). The Attorney General may, in his discretion, grant asylum to a “refugee.” 8 U.S.C. § 1158(b)(1).

A refugee is “any person who is outside any country of such person’s nationality ... who is unable or unwilling to return ... because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution involves a threat to one’s life or freedom on account of one of [these] five protected grounds.” Fisher v. INS, 291 F.3d 491, 497 (8th Cir.2002), citing 8 U.S.C. § 1101(a)(42)(A).

To establish a well-founded fear of persecution, the applicant must demonstrate the fear is both subjectively genuine and objectively reasonable. Shoaira v. Ashcroft, 377 F.3d 837, 844 (8th Cir.2004). The subjective element may be proven by credible testimony that the applicant genuinely fears persecution. Id., citing Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.1993). The objective element requires “credible, direct, and specific evidence that a reasonable person in the applicant’s position would fear persecution if returned to [his] country of origin.” Id.

Eta-Ndu asserts persecution claims based upon membership in a particular social group, the Eta-Ndu family. This requires a showing of a “pattern and practice” of persecution against his family on account of their social group status. See 8 C.F.R. § 208.13(b)(2)(iii) (2004); Makonnen v. INS, 44 F.3d 1378, 1383 (8th Cir. 1995) (defining a pattern and practice of discrimination as requiring “organized or systematic or pervasive persecution”).

Even assuming that Eta-Ndu’s allegations regarding his uncle and father were true, the evidence demonstrates they were persecuted due to their political beliefs, not their membership in the Eta-Ndu family. See Nyonzele v. INS, 83 F.3d 975, 983 (8th Cir.1996). Thus, the issue is whether Eta-Ndu has a well-founded fear of persecution based upon his own political beliefs. A. Past Persecution There is a rebuttable presumption of future persecution, once an applicant proves past persecution. See 8 C.F.R. § 208.13(b)(1) (2004); Tawm v. Ashcroft, 363 F.3d 740, 743 (8th Cir.2004), citing Eusebio, 361 F.3d at 1090.

Although EtaNdu testified to an attack by Cameroon officials, and detention for nearly three hours, this does not constitute past “persecution” as a matter of law. See Tawm, 363 F.3d at 743 (“Brief periods of detention do not necessarily constitute persecution.”). This court has denied asylum despite evidence of even more serious abuse. See Id., citing Eusebio, 361 F.3d at 1091 (brief detention and beating during political rallies and destruction of home insufficient to prove persecution), and Dandan v.

Ashcroft, 339 F.3d 567, 573-74 (7th Cir.2003) (one-time, three-day imprisonment insufficient to prove persecution). B. Future Persecution As set forth above, the applicant must establish a well-founded fear of persecution with “credible, direct, and specific evidence.” Shoaira, 377 F.3d at 844. Evidence at the first hearing demonstrated that in Cameroon, the SDF is a prominent opposition party, whose members have a history of persecution.

As to Eta-Ndu specifically, he testified that he, his father, and uncle actively participated in SDF activities, although neither he, his wife, or children were ever seriously harmed while living in Cameroon, nor did they have trouble obtaining travel documents. Further, although Eta-Ndu testified to his uncle’s murder and the burning of his father’s business, he admitted he did not know who was responsible for either incident.

Analyzing the evidence, the IJ divided Eta-Ndu’s allegations into three categories: 1) active membership in the SDF, 2) his father’s significant role as a local SDF leader, and 3) the politically-motivated murder of his uncle. The IJ required “objective evidence corroborating these three key factors in the case.” Eta-Ndu claims his testimony, standing alone, is credible and sufficient to meet his burden of proving persecution. He thus argues that the IJ and the BIA erred as a matter of law by requiring corroboration.

To the contrary, the IJ and the BIA may require corroborative evidence “where it is reasonable to expect corroboration],” El-Sheikh v. Ashcroft, 388 F.3d 643, 646 (8th Cir.2004), quoting Matter of S-M-J, 21 I & N Dec. 722, 725 (BIA 1997) (en banc).

However, a denial of asylum based upon the absence of corroborating evidence cannot be sustained if “the BIA [or the IJ] failed to: (1) rule explicitly on the credibility of [the applicant’s] testimony; (2) explain why it was reasonable ... to expect additional corroboration; or (3) assess the sufficiency of [the applicant’s] explanations for the absence of corroborating evidence.” Id. at 647, quoting Diallo v. INS, 232 F.3d 279, 287 (2nd Cir.2000), and rejecting Ladha v.

INS, 215 F.3d 889, 899 (9th Cir.2000) (the Ninth Circuit “does not require corroborative evidence from applicants ... who have testified credibly”). 1. The IJ did not explicitly find the testimony of Eta-Ndu not credible. This court does not require an explicit ruling on credibility before the IJ can expect additional corroboration. See El-Sheikh, 388 F.3d at 647. However, the IJ must, in such a case, explain why it is reasonable to expect additional corroboration. Id. 2. In this case, the IJ fully explained why it was reasonable to expect additional corroboration of Eta-Ndu’s central claims.

See El-Sheikh, 388 F.3d at 646-47. The IJ noted that according to Dr. Krieger, evidence of membership is easily available from the SDF. Dr. Krieger also stated that a murder of an SDF activist would be reported in the local press in Cameroon. Based upon this testimony, a request for documentary support of Eta-Ndu’s SDF participation and the uncle’s murder was not unreasonable. See id. at 646, quoting S-M-J, 21 I & N Dec. at 724-26 (“An asylum applicant should provide documentary support for material facts which are central to his claim and easily subject to verification.”). 3.

The IJ then assessed Eta-Ndu’s explanations of his attempted corroboration of alleged SDF activities. See El-Sheikh, 388 F.3d at 647. Eta-Ndu submitted two letters to corroborate his SDF participation. However, the IJ reasonably doubted their authenticity. Both letters lacked the “official” letterhead expected from an organized, established party like the SDF. More importantly, the forensic-documents analyst confirmed that the letters were typed on the same machine, despite having allegedly been sent from two separate officials, with offices located 40 miles apart.

The IJ determined that Eta-Ndu’s explanations lacked “any sort of credible basis.” Although one author explained that he sent his letters to a central typing school, Eta-Ndu failed to obtain a letter from the second author, or from the typing school, as the BIA noted. Eta-Ndu also failed to explain the practice of the school returning the documents back to the remote branches for the author’s signature. This additional step would require another hand-carrying of the letters to and from two remote regions of Cameroon, with coincidental arrival back to the same postal office for postmark on the same day.

The IJ concluded that without further corroboration from the SDF, the IJ could not overlook the questionable circumstances under which the two letters originated. See Diallo, 232 F.3d at 289-90 (noting that “petitioners may meet their burden of proof by offering a believable and sufficient explanation as to why such corroborating evidence was not presented”) (emphasis added).

In addition to the SDF letters, Eta-Ndu presented corroborating evidence in support of SDF involvement and his family’s persecution: letters from his father, brothers, and cousin/magistrate supporting his allegations; a police report about his uncle’s murder; and a letter from the local Cameroon police officer who sent the report to Eta-Ndu. The officer’s letter referenced Eta-Ndu’s father fleeing to Nigeria and his uncle’s murder due to “dirty politics.” The officer acknowledged, however, that his assistance was personally solicited by Eta-Ndu’s cousin/ magistrate.

Because this evidence essentially consisted of letters from family and close friends, the IJ found the evidence lacking “objectivity.” Therefore, the only “objective” evidence before the IJ were the two letters. The IJ and BIA explained that Eta-Ndu’s implausible explanations for the suspicious letters coupled with a lack of “objective” corroboration undermined Eta-Ndu’s case. See Nyonzele, 83 F.3d at 983. Although the IJ did not specifically find Eta-Ndu not credible, the IJ determined that the provided documents lacked credibility.

The IJ and the BIA gave “specific, cogent reasons” for not accepting Eta-Ndu’s explanations and finding the documents not credible. Perinpanathan, 310 F.3d at 597. Because this court must “give the immigration judge’s credibility finding ‘much weight,’ ” this determination is upheld. Id. at 598, quoting Hajiani-Niroumand v. INS, 26 F.3d 832, 838 (8th Cir.1994). Based upon the unbelievable documents and attempted justifications, the IJ and the BIA found Eta-Ndu failed to meet his burden of proof.

The IJ and the BIA correctly addressed Eta-Ndu’s corroboration and explanations, concluding he failed to meet his burden of proof. Based upon the record, denial of asylum to the Eta-Ndus is supported by “reasonable, substantial, and probative evidence.” Menendez-Donis, 360 F.3d at 917-18. This court does not find the evidence so compelling that no reasonable factfinder could find as the BIA and IJ did. See Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. 812. C. Withholding of Deportation Eta-Ndu also seeks withholding of deportation.

The standard of proof for withholding of deportation is more stringent than asylum. Krasnopivtsev, 382 F.3d at 840, citing 8 U.S.C. § 1231(b)(3). “The alien must show a ‘clear probability’ that he or she will face persecution in the country to which he or she will be deported.” Id., quoting Hasalla, 367 F.3d at 803. Because Eta-Ndu failed to prove eligibility for asylum, he also fails the higher burden of proof required for withholding of deportation. See id. IV. Due Process Eta-Ndu claims that the BIA violated his due process rights by not reopening and remanding his case for new evidence.

For an asylum applicant “to prevail on a due process challenge, [he] must show prejudice.” Shoaira, 377 F.3d at 843. Prejudice is found “where defects in the deportation proceedings ‘may well have resulted in a deportation that would not otherwise have occurred.’ ” United States v. Torres-Sanchez, 68 F.3d 227, 230 (8th Cir.1995) (citation omitted). Therefore, this court first ascertains whether a “defect” occurred, and then determines whether the applicant adequately proves “prejudice.” The BIA’s denial of a motion to reopen and remand is reviewed for abuse of discretion. See INS v.

Doherty, 502 U.S. 314, 323-24, 112 S.Ct. 719, 116 L.Ed.2d 823 (1992); Patel v. Ashcroft, 375 F.3d 693, 695 n. 2 (8th Cir.2004), citing Ramirez-Alejandre v. Ashcroft, 319 F.3d 365, 382 (9th Cir.2003) (“Under BIA procedure, a motion to remand must meet all the requirements of a motion to reopen and the two are treated the same.”). This court affirms the BIA’s denial of a motion to reopen “if the movants have failed to establish a prima facie case for the substantive relief they seek or if the movants have failed to introduce material evidence that was previously unavailable.” Strato v.

Ashcroft, 388 F.3d 651, 654 (8th Cir.2004), citing INS v. Abudu, 485 U.S. 94, 104-05, 108 S.Ct. 904, 99 L.Ed.2d 90 (1988). The BIA denied Eta-Ndu’s motion because he did not present “new evidence.” Eta-Ndu failed to adequately explain why the proffered evidence was “unavailable at the time of the hearing before the IJ.” See 8 C.F.R. § 1003.2(c)(1). He did not show why such evidence was unavailable either in 1998 or before the close of evidence on November 7, 2000. Eta-Ndu gave two explanations for failing to present the evidence earlier.

First, he “believed” the record was closed on October 5, 1998 — the deadline for documents confirming SDF activity and the uncle’s murder. Nearly two years passed between the time Eta-Ndu “believed” the record was closed and the final deportation hearing. During this time, he made no attempt to submit further evidence, or request a reopening of the record.

At the final hearing, Eta-Ndu’s counsel — after the IJ said that the record was “to be closed” — stated that he had “no objection.” Alternatively, Eta-Ndu explained that only after the IJ issued the decision on November 7, 2000, did he know that the IJ required SDF documentation on “official” letterhead. Eta-Ndu, however, misinterprets the Id’s decision.

The IJ noted the overall suspicious nature of the documents, which tainted his credibility, not just their failure to appear “official.” The IJ adequately notified Eta-Ndu that he was to produce “documentation from the SDF in Cameroon confirming [his] activities.” Eta-Ndu was even given time to explain the suspicious letters, yet failed to submit objective, reliable documentation of his SDF membership. Neither explanation proves the evidence was “unavailable” to Eta-Ndu prior to the April 1998 or the November 2000 hearings, nor do the explanations prove prejudice to Eta-Ndu.

He was given an adequate directive and sufficient time to present any objective, reliable evidence. He made no objection to the closing of the record at the final hearing. Accordingly, the BIA did not abuse its discretion by denying Eta-Ndu’s motion to reopen and remand. Thus, Eta-Ndu does not prove a defect prejudicial enough to maintain a due process claim. Accordingly, the decision of the BIA is affirmed. . The Eta-Ndus also have two other children who were born in the United States. .

Jacob Eta-Ndu's wife, Catherine, and their two Cameroon-born children are derivative beneficiaries of his request for the asylum and withholding of deportation. See 8 U.S.C. § 1158(c) (1994). Jacob Eta-Ndu, as the primary applicant for asylum, is hereinafter referred to as "Eta-Ndu.” . Dr. Krieger did not provide corroboration of Eta-Ndu's specific claims. While Dr.

Krieger testified to the general cultural and political conditions in Cameroon in the 1990s, he stated that after obtaining information and learning details about acts of persecution of SDF members during his time in Cameroon, he was “not aware” of the death of Eta-Ndu’s uncle, had “no knowledge” of the activities of Eta-Ndu’s father, and was not “able to reach” Eta-Ndu's cousin/magistrate. . Eta-Ndu also claims that the IJ violated due process by prematurely closing the record on October 5, 1998, and by failing to adequately specify the type of corroborative evidence he required.

Eta-Ndu failed to make this argument to the BIA. This court will not address the IJ's alleged due process violation because this court lacks jurisdiction to hear claims not raised before the BIA in the first instance. See Gebremaria v. Ashcroft, 378 F.3d 734, 736 n. 4 (8th Cir.2004).