Emmanuel Nnaji v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2019
• Docket: 10-73830
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 21 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EMMANUEL CHIGOZIE NNAJI, No. 10-73830

Petitioner, Agency No. A094-811-051

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

Respondent.

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

Submitted March 14, 2019** San Francisco, California

Before: WALLACE, TASHIMA, and McKEOWN, Circuit Judges.

Emmanuel Chigozie Nnaji (“Nnaji”), a native and citizen of Nigeria,

petitions for review of the Board of Immigration Appeals’ (“Board”) decision

affirming the Immigration Judge’s (“IJ”) denial of his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

* 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). Nnaji claims he is eligible for relief because he has been persecuted by Muslims in

his home country of Nigeria because he is a Christian.

“Where, as here, the BIA agrees with and incorporates specific findings of

the IJ while adding its own reasoning, we review both decisions.” Bhattarai v.

Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We have jurisdiction under 8 U.S.C.

§ 1252 and we affirm.

We review de novo Board interpretations of legal questions. Zheng v.

Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003). Nnaji’s asylum application was

untimely, submitted about four years after arriving to the United States as opposed

to within one year of arrival, as required. See 8 U.S.C. § 1158(a)(2)(B). There

were no “changed” or “extraordinary circumstances” excusing his delay. See 8

U.S.C. § 1158(a)(2)(D). Nnaji’s argument that he was ignorant of the asylum

system does not amount to either changed or extraordinary circumstances excusing

an untimely filing of an asylum application. See Antonio-Martinez v. INS, 317

F.3d 1089, 1093 (9th Cir. 2003). Additionally, his excuse of post-traumatic stress

or trauma, raised for the first time before this court, is not exhausted and therefore

we lack jurisdiction to consider it. See 8 U.S.C. § 1252(d)(1).

Even if Nnaji had established extraordinary circumstances that excused his

untimely asylum application, substantial evidence supports the Board’s affirmance

of the IJ’s adverse credibility determination. We review for substantial evidence

2 decisions by the Board denying eligibility for withholding of removal and adverse

credibility determinations, Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir.

2010), and uphold the Board’s adverse credibility determination unless we

determine “that ‘any reasonable adjudicator would be compelled to conclude’ that

[petitioner] is credible.” Rizk v. Holder, 629 F.3d 1083, 1091 (9th Cir. 2011)

(quoting 8 U.S.C. § 1252(b)(4)(B)).

The evidence in the record does not compel a positive credibility

determination. The Board permissibly relied on numerous inconsistencies between

Nnaji’s declaration and his testimony. Some of Nnaji’s inconsistencies go to the

heart of his claim that when he was living in Nigeria, he was mistreated and

attacked by Muslims because he is Christian, including an inconsistency about an

alleged riot and attack he suffered. Inconsistencies that strike at the heart of one’s

claim go above and beyond the requirements for making an adverse credibility

determination after the enactment of the REAL ID Act of 2005. Shrestha, 590

F.3d at 1043 (after the REAL ID Act, “an IJ may consider any inconsistency”

when assessing credibility, not only those that “‘go to the heart’ of the petitioner’s

claim”) (emphasis in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The IJ also

based the adverse credibility determination on Nnaji’s demeanor, specifically that

he “appeared very calm and cool” when describing events that he claimed were

traumatic, including his mother’s death and other traumatic events he claims he

3 experienced.

As required, the IJ considered Nnaji’s explanations for the perceived

inconsistences and did not find that they were persuasive. See Shrestha, 590 F.3d

at 1044. Nnaji’s argument that the IJ “acted in a biased manner” because the IJ’s

adverse credibility determination was based on “speculation and conjecture” is

contradicted by the IJ’s thorough review of the evidence and consideration of

Nnaji’s explanations. Thus, the IJ did not violate Nnaji’s due process rights.

Additionally, the Board did not err in concluding that the IJ properly

determined that Nnaji failed to present reasonably obtainable corroborating

evidence. See Aden v. Holder, 589 F.3d 1040, 1045 (9th Cir. 2009) (an applicant

“can be turned down for failing to provide corroboration where he does have it or

could reasonably obtain it”). For example, as the IJ noted, Nnaji has relatives in

the United States who “he testified knows about his story,” but they did not appear

in court or provide declarations supporting Nnaji’s claims.

In sum, substantial evidence supported the Board’s denial of Nnaji’s asylum

application. Nnaji necessarily failed to establish eligibility for withholding of

removal, which has a higher standard than asylum and, here, was based on the

same claims and evidence. Al-Harbi v. INS, 242 F.3d 882, 888–89 (9th Cir. 2001).

We also review for substantial evidence Board determinations denying

eligibility for protection under CAT. Shrestha, 590 F.3d at 1048. Substantial

4 evidence supported the Board’s denial of Nnaji’s CAT application because he did

not show it is “more likely than not” that he would be tortured in the country of

removal “by or at the instigation of or with the consent or acquiescence of a public

official or other person acting in an official capacity.” 8 C.F.R. § 1208.16(c)(2); 8

C.F.R. § 1208.18(a)(1). Neither the country condition evidence nor Nnaji’s

testimony met this burden.

The petition for review is DENIED.