Fidelis Nkenganyi v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 26, 2023
• Docket: 21-70184
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

FIDELIS NKENGANYI, No. 21-70184

Petitioner, Agency No. A213-187-006

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

Respondent.

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

Argued and Submitted October 19, 2022 Portland, Oregon

Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW,** District Judge. Partial Concurrence and Partial Dissent by Judge BADE.

Fidelis Nkenganyi, a native and citizen of Cameroon, seeks review of a

decision by the Board of Immigration Appeals (BIA) affirming the Immigration

Judge’s (IJ) denial of 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 Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,

and we grant the petition in part and deny it in part.

We review the “factual findings underlying the BIA’s determination that a

petitioner is not eligible for asylum, withholding of removal, or CAT relief” for

substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir.

2022). The agency’s determination is not supported by substantial evidence if the

record compels a contrary conclusion. Id. Where, as here, the BIA’s decision “relies

in part on the immigration judge’s reasoning, we review both decisions.” Flores-

Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012).

1. Substantial evidence supports the agency’s denial of asylum and

withholding of removal on adverse credibility grounds. The IJ must provide

“specific and cogent reasons” for an adverse credibility determination, Shrestha v.

Holder, 590 F.3d 1034, 1042 (9th Cir. 2010), considering the “totality of the

circumstances and all relevant factors,” Iman v. Barr, 972 F.3d 1058, 1067 (9th

Cir. 2020). “Such factors include . . . an applicant’s ‘demeanor, candor, or

responsiveness’ as well as the consistency between an applicant’s statements and

other evidence in the record.” Id. at 1065 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).

The IJ found Nkenganyi not credible based on a lack of candor and fourteen

separate inconsistencies within his testimony and between his testimony and the

record evidence. The IJ properly considered Nkenganyi’s “explanation[s] for [the]

2 perceived inconsistenc[ies],” Shrestha, 590 F.3d at 1044, and provided “specific

and cogent reasons supporting” her determination, id. at 1042. On appeal, the BIA

affirmed the IJ’s adverse credibility determination “[b]ased on the significant

inconsistencies in the record and the unpersuasive explanations for those

discrepancies.”

The agency’s denial of asylum and withholding of removal on adverse

credibility grounds is supported by substantial evidence because the record does

not compel a contrary conclusion. Thus, the petition is denied with respect to the

asylum and withholding of removal claims.

2. Substantial evidence does not support the agency’s denial of CAT

protection. An applicant for CAT relief bears the burden of proving that he is

“more likely than not” to be tortured “by . . . or with the consent or acquiescence of

a public official” if sent to his designated country of removal. Kamalthas v. I.N.S.,

251 F.3d 1279, 1282 (9th Cir. 2001) (internal quotation marks omitted). “It is

important to keep in mind that the CAT standard is ‘distinct’ from that of asylum

and the two bases for relief ‘should not be conflated.’” Udo v. Garland, 32 F.4th

1198, 1202 (9th Cir. 2022) (quoting Farrah v. Ashcroft, 348 F.3d 1153, 1157 (9th

Cir. 2003)). An adverse credibility determination is not fatal to a CAT claim, so

long as other evidence standing alone supports the claim. Shrestha, 590 F.3d at

1048–49. When deciding whether to grant relief under CAT, the agency must

3 consider “all evidence relevant to the possibility of future torture.” 8 C.F.R.

§ 1208.16(c)(3). “In particular, where potentially dispositive testimony and

documentary evidence is submitted, the BIA must give reasoned consideration to

that evidence.” Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011). Evidence of past

torture is highly relevant to CAT claims, see Akosung v. Barr, 970 F.3d 1095, 1105

(9th Cir. 2020), and “country conditions alone can play a decisive role” in granting

CAT relief, Kamalthas, 251 F.3d at 1280.

Nkenganyi submitted both third-party affidavits and country conditions

reports to support his claim that he will be tortured by Cameroonian government

forces if removed to Cameroon. Taken together, the affidavits from Nkenganyi’s

wife, brother, and former employer describe Nkenganyi’s being beaten, detained,

tortured, and extorted by government forces, apparently fueled by accusations

(which, according to Nkenganyi, are false) that he is a separatist supporter. The

affidavits further state that the Cameroonian “forces of law and order” have been

searching for Nkenganyi since he left. The country conditions reports describe an

ongoing conflict between the Cameroonian government and Anglophone separatist

groups, in which “government forces [have] killed civilians.” Because the

affidavits provide accounts of prior torture and abuse at the hands of military

officials, this potentially dispositive evidence required reasoned consideration by

the agency. See Udo, 32 F.4th at 1201, 1204–05.

4 In affirming the IJ’s denial of CAT relief, the BIA mentioned that the CAT

claim was “based on the same testimony that the [IJ] found not credible” and that

Nkenganyi did not demonstrate his eligibility “independent of the incredible

testimony.” This brief reference to the IJ’s decision does not, alone, show that the

BIA adequately considered the highly probative evidence presented.

The IJ’s decision regarding the CAT claim contained only a cursory mention

of this evidence. Although the IJ discussed the affidavits elsewhere in the decision,

it was only to point out perceived inconsistencies with Nkenganyi’s testimony. The

IJ did not evaluate the affidavits independently to assess Nkenganyi’s claim of

torture or determine that this evidence lacked credibility or weight.1 “In the face of

persuasive evidence, the agency’s dismissive, fleeting reference to that evidence is

insufficient and falls far short of the agency’s obligation to give ‘reasoned

consideration’ to the evidence.” Id. at 1205.

Regarding the country conditions evidence, the IJ acknowledged that the

reports showed “significant human rights abuses” against Anglophones in

Cameroon but concluded that this did not establish Nkenganyi’s eligibility for

CAT protection because he had not “met his burden in demonstrating that he is an

1 The IJ briefly mentioned Nkenganyi’s wife’s affidavit in the CAT claim section of the decision, but it was in the context of finding that Nkenganyi’s family remains unharmed in Cameroon. It was not an evaluation of whether the independent evidence sufficiently establishes eligibility for CAT protection.

5 Anglophone.” But the BIA did not adopt the IJ’s finding that Nkenganyi lacked

candor regarding his Anglophone status and did not otherwise discuss Nkenganyi’s

Anglophone identity anywhere in its decision. In the absence of the rationale relied

upon by the IJ, the BIA did not provide any other explanation for concluding that

the country conditions evidence was not sufficient to meet Nkenganyi’s burden for

demonstrating CAT eligibility.2 Finally, even if the BIA had adopted the IJ’s

finding that Nkenganyi failed to establish his Anglophone status because he

testified that French is his best language, remand is still appropriate. The affidavits

from his family and school administrator are potentially dispositive evidence that

the government perceives him to be an Anglophone separatist and he experienced

torture based on this imputed characteristic. See Udo, 32 F.4th at 1205 (“Had the

agency accorded any weight to this evidence, it could have” found “the missing

factual finding upon which the agency predicated its denial of CAT relief.”).

On remand, the agency must give reasoned consideration to potentially

dispositive evidence, including the affidavits and country conditions reports. Id. at

2 The dissent argues that the BIA incorporated and adopted all of the IJ’s reasons for denying relief under CAT “without additional commentary,” including the IJ’s finding that Nkenganyi’s fear of torture was not well-founded because he failed to establish that he is an Anglophone. Where, as here, the BIA expressly adopts certain grounds relied upon by the IJ and omits mention of other grounds, “[o]ur review is limited to those grounds explicitly relied upon by the [BIA].” Diaz- Reynoso v. Barr, 968 F.3d 1070, 1075 (9th Cir. 2020) (quoting Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016)); see also Villegas Sanchez v. Garland, 990 F.3d 1173, 1178 n.5 (9th Cir. 2021).

6 1202–03; see also 8 C.F.R. § 1208.16(c)(3) (“In assessing whether it is more likely

than not that an applicant would be tortured in the proposed country of removal, all

evidence relevant to the possibility of future shall be considered.”).

PETITION FOR REVIEW DENIED IN PART AND GRANTED IN

PART.

7 FILED Nkenganyi v. Garland, No. 21-70184 APR 26 2023 MOLLY C. DWYER, CLERK BADE, Circuit Judge, concurring in part, and dissenting in part: U.S. COURT OF APPEALS

I concur in part 1 of the disposition, which denies the petition with respect to

the petitioner’s asylum and withholding of removal claims. But in part 2, the

majority fails to follow our well-settled precedent that requires us to consider both

the BIA’s and IJ’s decisions when the BIA incorporates or agrees with the IJ’s

reasoning, and it ignores our caselaw applying the CAT implementing regulations,

8 C.F.R § 1208.16(c)(3). When the record is properly reviewed, substantial

evidence supports the agency’s denial of CAT relief. Therefore, I would deny the

petition in its entirety. I respectfully dissent from part 2 of the disposition.

1. As an initial matter, the majority correctly acknowledges that “[w]here, as

here, the BIA’s decision ‘relies in part on the immigration judge’s reasoning, we

review both decisions.’” Mem. Disp. at 2 (quoting Flores-Lopez v. Holder, 685

F.3d 857, 861 (9th Cir. 2012)). Indeed, we have long held that when the BIA

incorporates portions of the IJ’s decision “as its own, we treat the incorporated

parts of the IJ’s decision as the BIA’s.” Molina-Estrada v. INS, 293 F.3d 1089,

1093 (9th Cir. 2002) (citations omitted).1

1 See also, e.g., Szonyi v. Barr, 942 F.3d 874, 897 (9th Cir. 2019) (same); Garcia-Martinez v. Sessions, 886 F.3d 1291, 1293 (9th Cir. 2018) (same); Sinha v. Holder, 564 F.3d 1015, 1019–20 (9th Cir. 2009) (reviewing the IJ’s decision when the BIA adopted and affirmed the IJ’s decision “without adding any commentary of its own”)). Here, the BIA incorporated the IJ’s reasoning for denying CAT relief, with

direct citations to the incorporated section of the IJ’s decision, and without

additional commentary. 2 See Sinha, 564 F.3d at 1019–20. Specifically, the BIA

adopted the IJ’s reasoning in denying CAT relief based on Petitioner’s incredible

testimony and his failure to present objective evidence of government

acquiescence. See Gonzalez-Caraveo v. Sessions, 882 F.3d 885, 889 (9th Cir.

2018) (concluding that the BIA adopted the IJ’s reasoning when it “agree[d] with

the [IJ] that the evidence [was] insufficient to establish the likelihood of torture,”

with government acquiescence).

The IJ’s incorporated decision gave several reasons for denying CAT relief.

First, Petitioner’s fear of torture was based on a series of suppositions, including

that he would be identified as an Anglophone, but Petitioner testified that his best

2 In denying Petitioner’s CAT claim, the BIA affirmed and adopted in its entirely the IJ’s CAT analysis, without any additional commentary, stating: Further, we affirm the Immigration Judge’s denial of CAT protection (IJ at 10-12; Respondent’s Br. at 25-26). The respondent’s claim for CAT protection is based on the same testimony the Immigration Judge found not credible (IJ at 11). We agree with the Immigration Judge that the respondent did not establish, independent of the incredible testimony, that it is more likely than not he will be tortured by or at the instigation of, or with the consent or acquiescence of (to include the concept of “willful blindness”), a public official or other person acting in an official capacity in Cameroon (IJ at 11-12). Thus, the majority’s assertion that the BIA adopted some, but not all, of the IJ’s reasons for denying CAT relief, Mem. Disp. at 6 n.2, is flatly wrong and irreconcilable with the plain language of the BIA’s decision.

2 language is French. Therefore, he “failed to establish the very first link in the

chain of causation.” Second, Petitioner’s family remained unharmed in Cameroon.

Third, although Petitioner claimed that his wife was in hiding in Cameroon, her

affidavit states that Cameroonian law enforcement frequently visit her looking for

Petitioner, which does not make sense if she is in hiding. Fourth, Petitioner left

Cameroon without incident. In sum, the IJ—and by incorporation, the BIA—

concluded that “the evidence does not show any particularized risk of torture for

[Petitioner] beyond that faced by the general population of Cameroon, which does

not rise to a ‘clear probability’ of occurrence.”

The majority, however, dismisses the agency’s fulsome reasoning that

Petitioner failed to establish his CAT claim. The majority asserts that because the

BIA did not address the IJ’s finding that Petitioner misrepresented his English

proficiency in its discussion of the IJ’s adverse-credibility determination, that

means the BIA did not adopt the IJ’s reasoning that the Petitioner had not

established he is an Anglophone, which is the basis for his CAT claim. 3 Mem.

Disp. at 5-6.

But the majority’s analysis is inconsistent with our case law requiring us to

look to the IJ’s reasoning when, as here, the BIA incorporates it without any

3 Notably, the agency’s conclusion that Petitioner had not established his Anglophone status was based both on his lack of candor regarding his English language proficiency and his testimony that French is his best language.

3 “commentary” of its own. Sinha, 564 F.3d at 1019–20; see also, e.g., Flores-

Lopez, 685 F.3d at 861; Molina-Estrada, 293 F.3d at 1093. The IJ denied

Petitioner’s CAT claim, in part, because Petitioner did not establish the basis for

his claim—that he is an Anglophone. The BIA adopted that reasoning and

incorporated it into its decision. The BIA’s decision, when read properly to

incorporate the IJ’s decision, is amply supported by substantial evidence.

2. The majority also concludes that the agency did not adequately

consider “all evidence relevant to the possibility of future torture,” as the CAT

implementing regulations require. See 8 C.F.R § 1208.16(c)(3). To support its

argument that the agency did not consider all the evidence, the majority cites Cole

v. Holder for the unremarkable proposition that when potentially dispositive

evidence is submitted, “the BIA must give reasoned consideration to that

evidence.” Mem. Disp. at 4 (quoting 659 F.3d 762, 772 (9th Cir. 2011)). But

tellingly, the majority omits any discussion of our explication in Cole of how this

regulation is applied.

In Cole, after noting the regulation, we stated “[t]hat is not to say that the

BIA must discuss each piece of evidence submitted. When nothing in the record or

the BIA’s decision indicates a failure to consider all evidence, a ‘general statement

that [the agency] considered all the evidence before [it]’ may be sufficient.” 659

F.3d at 771 (second and third alterations in original) (citation omitted). We further

4 described indications that the BIA failed to consider all the evidence, such as

“misstating the record and failing to mention highly probative or potentially

dispositive evidence.” Id. at 771–72 (citations omitted); see also Villegas Sanchez

v. Garland, 990 F.3d 1173, 1182–83 (9th Cir. 2021) (explaining that, even under

the CAT implementing regulations, the agency need not discuss every piece of

evidence submitted); Gonzalez-Caraveo, 882 F.3d at 894–95 (rejecting argument

that the agency failed to consider evidence for CAT claim because although the IJ

and BIA “could have elaborated in their respective decisions, there is no indication

of misstating the record or of the IJ failing to mention critical evidence”) (citations

omitted); Almaghzar v. Gonzales, 457 F.3d 915, 922 (9th Cir. 2006) (explaining

that 8 C.F.R. § 1208.16(c)(3) “does not require an IJ’s decision to discuss every

piece of evidence; it only requires that the IJ consider all evidence”).

Here, the majority claims that the agency did not adequately consider third-

party affidavits and letters from Petitioner’s wife, brother, and former employer.

Mem. Disp. at 4–5. Because the BIA and IJ discussed these documents

specifically, at length, and in detail in their decisions, the majority’s claim that the

agency did not consider these documents strains credulity.4 Moreover, the BIA

4 The majority seems to suggest that the agency must discuss each piece of evidence in its discussion of each claim. Mem. Disp. at 5 (acknowledging that “the IJ discussed the affidavits elsewhere in the decision”). But it cites no authority to support this position, which flatly contradicts our repeated explanation of the agency’s obligations to consider the evidence.

5 and IJ did not simply provide catchall statements that they had considered all the

evidence. Instead, the IJ’s decision listed all the evidence she considered, and this

evidence included the third-party affidavits and letters from Petitioner’s wife,

brother, and former employer, which were also attached as exhibits to the IJ’s

decision. The BIA’s decision also described the letters and affidavits and

identified them by exhibit numbers. There is no indication that the BIA or IJ failed

to consider all the documentary evidence as neither “misstat[ed] the record [or]

fail[ed] to mention highly probative or potentially dispositive evidence.” See, e.g.,

Cole, 659 F.3d at 771–72.

Because the IJ and BIA adequately considered all the evidence, and because

requiring further treatment of the affidavits and country condition reports creates a

standard more demanding than that required by our caselaw, I would deny the

petition.