Comfort Agbor v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 29, 2020
• Docket: 19-71021
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 29 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

COMFORT N. AGBOR, No. 19-71021

Plaintiff-Appellant, Agency No. A215-671-614

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 16, 2020** Pasadena, California

Before: SCHROEDER and COLLINS, Circuit Judges, and BAYLSON,*** District Judge.

Petitioner Comfort Agbor seeks review of the order of the Board of

Immigration Appeals (“BIA”) affirming the decision of the immigration judge (“IJ”)

* 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). *** The Honorable Michael M. Baylson, United States District Judge for the Eastern District of Pennsylvania, sitting by designation. denying her applications for political asylum and for withholding of removal under

the Immigration and Nationality Act (“INA”), and for protection under the United

Nations Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252 and deny the petition for review.

“We review the denial of asylum, withholding of removal and CAT claims for

substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.

2019). Review for substantial evidence permits reversal only if “the evidence not

only supports a contrary conclusion, but compels it—and also compels the further

conclusion that the petitioner meets the requisite standard for obtaining relief.”

Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (internal quotation marks

and citations omitted).

Petitioner first challenges the adverse credibility determination underlying the

denial of her applications for asylum and for withholding of removal. A credibility

determination should account for the “totality of the circumstances, and all relevant

factors,” which may include the applicant’s demeanor, candor, responsiveness,

inconsistency, and any falsehoods in her statements. 8 U.S.C. § 1158(b)(1)(B)(iii);

see also id. § 1231(b)(3)(C). Here, the IJ’s adverse credibility finding was based on

ten specific factors, including observations about her demeanor as well as various

inconsistencies and implausibilities in Petitioner’s testimony. In affirming, the BIA

relied on four of the factors identified by the IJ. Because the BIA offered “a

2 19-71021 legitimate articulable basis” for upholding the adverse credibility determination, one

that was supported by “specific, cogent reason[s],” the BIA’s determination is

supported by substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002);

see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (holding that a

petition for review must be denied unless the petitioner “present[s] evidence so

compelling that no reasonable factfinder could find that [s]he was not credible”

(internal quotation marks and citations omitted)).

Since we uphold the adverse credibility determination, Petitioner’s challenges

to the denial of her applications for asylum and for withholding of removal fail.

Because Petitioner sought to sustain her burden on asylum through her testimony,

and because her testimony was validly rejected as not credible, she has not

demonstrated a “well-founded fear of persecution” based on a statutorily protected

ground. 8 U.S.C. § 1101(a)(42). Since Petitioner failed to satisfy her burden on

asylum, she necessarily failed to satisfy the more stringent standard applied to claims

for withholding of removal. See Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir.

2000) (“A failure to satisfy the lower standard of proof required to establish

eligibility for asylum . . . necessarily results in a failure to demonstrate eligibility for

withholding of deportation.”).

Petitioner next challenges the denial of her application for CAT protection.

To establish eligibility for protection under the CAT, Petitioner bears the burden of

3 19-71021 establishing “it is more likely than not that . . . she would be tortured if removed to

the proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). “[A]ll relevant

evidence” should be considered, including evidence that it is possible for Petitioner

to relocate within the country of removal. Maldonado v. Lynch, 786 F.3d 1155, 1164

(9th Cir. 2015) (referencing 8 C.F.R. § 1208.16(c)(3)). Here, the BIA adopted the

reasoning of the IJ, who found that Petitioner’s testimony indicated she could

relocate safely within Cameroon. The IJ’s relocation finding, which informed the

denial of Petitioner’s CAT claim, is supported by substantial evidence. Petitioner

argues that the IJ and the BIA gave insufficient consideration to country reports and

news articles describing violence in Cameroon, but these reports do not “compel”

the conclusion that Petitioner herself will more likely than not be tortured if she

returns to Cameroon. Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006).

Therefore, the BIA did not err in rejecting Petitioner’s application for CAT

protection.

Petitioner’s final challenge is that the absence of a Pidgin English interpreter

at her immigration proceedings violated due process. To comport with the

requirements of due process, a merits deportation hearing “must be translated into a

language an alien can understand.” Khan v. Ashcroft, 374 F.3d 825, 829 (9th Cir.

2004). However, no due process violation occurs so long as the person facing

deportation can “participate meaningfully” in the deportation hearing despite the

4 19-71021 absence of a translator. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir. 1994). In this

case, where Petitioner participated in numerous hearings and interviews in English

before notifying the IJ that Pidgin English was her best language, never explicitly

requested the services of a Pidgin English interpreter, and was able to answer the

questions asked of her (albeit sometimes with clarification), it cannot be said that

she was deprived of a “full and fair hearing.” Perez-Lastor v. INS, 208 F.3d 773,

778 (9th Cir. 2000); see also Kotasz v. INS, 31 F.3d 847, 850 n.2 (9th Cir. 1994)

(finding no due process violation where “[c]larification or repetition was at times

required” because the petitioners “were given a fair opportunity to relate their

version of events”). Therefore, the BIA correctly determined that Petitioner’s due

process rights were not violated by the absence of a Pidgin English interpreter.

The Petition for Review is DENIED. Petitioner’s Emergency Motion to Stay

Removal (Docket Entry No. 2) is denied as moot.

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