Charles Abajeih v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 6, 2022
• Docket: 20-72348
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 6 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES NJOIKOU ABAJEIH, AKA No. 20-72348 Charles Abajeih Njoku, Agency No. A213-187-583 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Argued and Submitted December 9, 2021 Pasadena, California

Before: KELLY,** M. SMITH, and FORREST, Circuit Judges.

Petitioner Charles Njoikou Abajeih seeks review of a Board of Immigration

Appeals’s (BIA) decision dismissing his appeal from an Immigration Judge’s (IJ)

denial of his applications for asylum, withholding of removal, and relief under the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,

and we deny the petition in part and remand to the BIA for further proceedings.

The parties are familiar with the facts, so we provide only a brief outline.

Petitioner is a native English speaker from Cameroon, twice detained by his

government. After his first release in November 2015, Petitioner moved to

Nigeria, where he used a fake marriage certificate, false employment information,

and a Nigerian passport under a false name to apply for a U.S. visa. That visa was

denied because Petitioner’s fingerprints connected him to two identities.

Petitioner returned to Cameroon. In December 2018, military personnel

accused Petitioner of using money from his brother to support separatists, detained

him, and beat him. Petitioner was released when his brother provided payment to

the prison commander in April 2019. On September 4, 2019, Petitioner was

detained at the San Ysidro, California port of entry and on September 8, 2019,

gave a sworn statement in proceedings under INA § 235(b)(1). Petitioner falsely

claimed that he had never used another name and had applied for a U.S. visa once

and was denied.

Pursuant to a Notice to Appear, Petitioner appeared pro se in immigration

court and admitted entering this country without entry documents. See 8 U.S.C.

§ 1182(a)(7)(A)(i)(I). In his testimony before the IJ, Petitioner provided multiple

dates of when he left Cameroon for the second time. He eventually clarified that

2 his second arrest was in December 2018 and his second time leaving Cameroon

was upon his release in 2019. The IJ denied Petitioner’s applications for asylum

and withholding of removal based upon an adverse credibility determination. The

IJ also found Petitioner’s claim for CAT protection too weak because of incredible

testimony and a failure to show a likelihood of torture. The BIA affirmed on these

grounds.

STANDARD OF REVIEW

We review the BIA’s decision except where it explicitly adopts the IJ’s

opinion. Plancarte v. Garland, 9 F.4th 1146, 1151 (9th Cir. 2021). We review

adverse credibility determinations under a substantial evidence standard. Bassene

v. Holder, 737 F.3d 530, 536 (9th Cir. 2013). “[C]redibility determinations are

made—and must be reviewed—based on ‘the totality of the circumstances and all

relevant factors,’ not a single factor.” Alam v. Garland, 11 F.4th 1133, 1135 (9th

Cir. 2021) (en banc) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The substantial

evidence standard is extremely deferential because an agency’s “reasonable

findings may not be disturbed.” Garland v. Ming Dai, 141 S. Ct. 1669, 1677

(2021). The agency may abuse its discretion, however, when it ignores arguments

or evidence. Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013).

3 A. Asylum and Withholding of Removal

The BIA affirmed based on the adverse credibility determination noting

Petitioner’s inconsistent testimony, omissions, and fraudulent actions. The record

supports the BIA’s conclusion that Petitioner testified inconsistently as to when he

left Cameroon last. During his final removal hearing, Petitioner testified that he

left Cameroon for the second time in December 2016, but also that he lived in

Cameroon from March 2016 to December 2018. After the IJ pointed out that

Petitioner could not have fled Cameroon in December 2016 if he was living in its

capital for two more years, he testified that he was arrested for the second time in

December 2018 and fled for the second time after his release in April 2019.

Although the IJ noted that Petitioner’s subsequent testimony “br[ought] back

into alignment his second detention,” realigning testimony does not change the fact

that testimony is inconsistent. The IJ’s finding that Petitioner’s testimony was

“internally inconsistent[,] . . . implausible, and difficult to believe” is a permissible

view of the evidence and supports the adverse credibility determination. See 8

U.S.C. § 1158(b)(1)(B)(iii); Li v. Garland, 13 F.4th 954, 958–59 (9th Cir. 2021).

It is a conclusion that a reasonable adjudicator could make. See Ming Dai, 141

S. Ct. at 1677. Substantial evidence thus supports the BIA’s decision. 8 U.S.C.

§ 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992).

4 The agency also viewed as material Petitioner’s omissions and false

statements made under oath. “[I]n general, ‘omissions are less probative of

credibility than inconsistencies created by direct contradictions in evidence and

testimony.’” Iman v. Barr, 972 F.3d 1058, 1067 (9th Cir. 2020) (quoting Lai v.

Holder, 773 F.3d 966, 971 (9th Cir. 2014)). However, the agency may rely on

omissions when making credibility determinations as long as they are “weighed in

light of the totality of the circumstances and all relevant factors.” Id. In his INA

§ 235(b)(1) sworn statement, Petitioner lied about a second time he applied for a

U.S. visa and did not disclose that he had provided fraudulent information

including a false name. Petitioner’s omissions were part of statements taken under

oath and recorded; furthermore, he admitted to initialing each page of the report,

and he was cross-examined on the issue. See 8 U.S.C. § 1225(b)(1). The IJ was

not required to credit this explanation as “even minor inconsistencies that have a

bearing on a petitioner’s veracity may constitute the basis for an adverse credibility

determination.” Li, 13 F.4th at 959 (quoting Ren v. Holder, 648 F.3d 1079, 1089

(9th Cir. 2011)).

B. CAT Protection

The BIA affirmed the IJ’s decision to deny CAT protection based on its

adverse credibility determination and the merits. Of course, the BIA must provide

its reasons and demonstrate proper consideration of all factors when reviewing a

5 claim for CAT relief. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.

2006). This includes consideration of country conditions in the record. See 8

C.F.R. § 208.16(c)(3) (2020). In Aguilar-Ramos v. Holder, this court decided that

“the failure of the IJ and BIA to consider evidence of country conditions

constitutes reversible error.” 594 F.3d 701, 705 (9th Cir. 2010). This is because

country conditions alone could satisfy a CAT applicant’s burden. Id. Here, neither

the IJ nor the BIA discussed the country conditions in the record. And we cannot

assume that the BIA considered matters upon which its opinion is silent. Etemadi

v. Garland, 12 F.4th 1013, 1026 (9th Cir. 2021).

We DENY the petition for review of Petitioner’s asylum and withholding of

removal claims and REMAND Petitioner’s CAT claim to the BIA for proceedings

consistent with this memorandum.