Elvis Ndum v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 13, 2021
• Docket: 20-73481
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 13 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ELVIS ACHU NDUM, No. 20-73481

Petitioner, Agency No. A213-187-604

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

Respondent.

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

Submitted October 7, 2021** Portland, Oregon

Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.

Petitioner Elvis Achu Ndum seeks review of the Board of Immigration

Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) order denying his

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

* 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). 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); see also Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013) (“Credibility

determinations are reviewed for substantial evidence.”). Under the substantial

evidence standard, we may grant the petition 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) (quotation marks and

citation omitted).

1. Ndum first challenges the adverse credibility determination underlying

the denial of his applications for asylum, withholding of removal, and CAT

protection. 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. 8 U.S.C.

§ 1158(b)(1)(B)(iii). We have held that, where, as here, a credible-fear interview

bears “sufficient indicia of reliability,” inconsistencies between an applicant’s

credible-fear interview and later testimony may form the basis of an adverse

2 credibility determination. See Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir.

2020). Contrary to Ndum’s argument, there is no indication that the report of the

credible fear interview contained clerical errors.

Here, the IJ’s adverse credibility finding was based on various

inconsistencies between Ndum’s credible-fear interview and his later testimony as

well as implausibilities and omissions in the later testimony. In affirming the IJ,

the BIA relied on this same reasoning. Because the BIA offered “a legitimate

articulable basis” for upholding the adverse credibility determination, 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).

Since we uphold the adverse credibility determination, Ndum’s challenges to

the denial of his applications for asylum and for withholding of removal fail.

“Without credible testimony or sufficient corroborating evidence, [Ndum] cannot

show that he has a well-founded fear of persecution” based on a protected ground.

Mukulumbutu, 977 F.3d at 927. Because Ndum failed to satisfy his burden on

asylum, he necessarily fails to satisfy the more stringent standard applied to claims

for withholding of removal. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230

(9th Cir. 2016) (“A petitioner who fails to satisfy the lower standard of proof for

3 asylum necessarily fails to satisfy the more stringent standard for withholding of

removal.”).

2. Ndum also challenges the denial of his application for CAT protection.

“An adverse credibility determination is not necessarily a death knell to CAT

protection.” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). We have

held that even where an applicant has been deemed not credible, “country

conditions alone can play a decisive role in granting relief under” CAT.

Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001).

While the country conditions evidence demonstrates that Anglophones

experience violence in Cameroon, it does not establish that it is more likely than

not that Ndum will be tortured by or with the consent or acquiescence of a public

official because of his Anglophone-status. Mukulumbutu, 977 F.3d at 927.

Substantial evidence thus supports the BIA’s determination that Ndum did not

satisfy his burden for CAT protection.

We decline to take judicial notice of the 2020 Cameroon country conditions

evidence. First, this evidence was not presented to the BIA. See 8 U.S.C.

§ 1252(b)(4) (“[T]he court of appeals shall decide the petition only on the

administrative record on which the order of removal is based.”). Second, there is

no basis upon which to view the updated country conditions evidence. See Gafoor

4 v. INS, 231 F.3d 645, 655 (9th Cir. 2000) (explaining that Fisher v. INS, 79 F.3d

955 (9th Cir. 1996) (en banc) applies when country conditions change in

significant ways that are “so troubling, so well publicized, and so similar to earlier

coups” that the court would be “abdicating [its] responsibility” if it were to ignore

the situation).

PETITION DENIED.