Charles Aborungong v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 19, 2021
• Docket: 20-72198
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 19 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CHARLES ABORUNGONG, No. 20-72198

Petitioner, Agency No. A201-683-235

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 5, 2021** Anchorage, Alaska

Before: WARDLAW, MILLER, and BADE, Circuit Judges.

Charles Aborungong petitions for review of the Board of Immigration

Appeals’ (BIA) decision affirming an Immigration Judge’s (IJ) denial of his

application for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). and we deny the petition in part and dismiss it in part.

1. Aborungong argues the agency improperly relied on his border

interview in finding him not credible based on inconsistencies between his

statements during that interview and his subsequent testimony. However, the

totality of the circumstances indicates that Aborungong’s border interview was

reliable. See In re J-C-H-F-, 27 I. & N. Dec. 211, 213 (B.I.A. 2018). Aborungong

is a native English speaker, and the border interview was conducted in English

without an interpreter. See Singh v. INS, 292 F.3d 1017, 1022 (9th Cir. 2002). The

interview was transcribed, not merely summarized. See, e.g., Li v. Ashcroft, 378

F.3d 959, 963 (9th Cir. 2004) (recognizing that transcription of border interview

weighed in favor of reliability). And, while Aborungong asserts that he felt

“rushed . . . to sign every page” of the transcript to confirm its accuracy and did not

fully review the transcript before signing, he points to no evidence that the officer

inaccurately transcribed the interview. Moreover, although Aborungong notes that

the interview occurred at 4:00 a.m., the transcript contains no indication that

Aborungong was too tired or confused to give accurate testimony. Finally,

Aborungong swore to answer all questions truthfully during that interview, and he

confirmed in his testimony to the IJ that he had “answered all the questions asked

[during the border interview] truthfully.”

2. Aborungong argues the agency’s adverse credibility determination is

2 unsupported by substantial evidence. We disagree. The agency identified several

discrepancies between Aborungong’s border interview and his testimony to the IJ

regarding whether he returned home after the military came to his house, how

many times he was interrogated and beaten in detention, what kinds of injuries he

suffered, and the date of the protest that led to his arrest.1 Apart from disputing the

reliability of the border interview, Aborungong does not challenge the agency’s

reliance on any of these inconsistencies.

Aborungong does argue that the agency improperly relied on speculation in

finding his account of the police waiting a month to search for him at his home

after he escaped from custody implausible. However, we need not determine

whether this finding was “a reasonable evaluation of the testimony and evidence

based on common sense.” Lalayan v. Garland, 4 F.4th 822, 2021 WL 2933340, at

*10 (9th Cir. 2021). Even setting aside the agency’s findings on the plausibility of

this aspect of Aborungong’s account, substantial evidence supports the agency’s

adverse credibility determination given the numerous inconsistencies in his

testimony.

1 While the BIA recognized that the discrepancy regarding the date of the protest was “not a significant inconsistency” and would “not on its own support an adverse credibility determination,” it appropriately concluded that this inconsistency, “considered collectively” with the others, “depriv[ed] [Aborungong’s] claim of the requisite ring of truth.” Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (quotation marks and citation omitted).

3 3. Aborungong argues that country condition evidence compels the

conclusion that he is entitled to CAT relief. However, Aborungong did not raise

this argument to the BIA, and the BIA accordingly declined to reach the issue.

Because this issue is unexhausted, we lack jurisdiction to reach it. See Sola v.

Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam).

DENIED IN PART AND DISMISSED IN PART.