Fousseni v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 25, 2023
• Docket: 21-1420
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 25 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Tadjoudine Fousseni; Hadidja No. 21-1420 Fousseni; Sadiatou Amidu, Agency Nos. A215-668-556 Petitioners, A215-668-531 A215-668-530 v.

Merrick B. Garland, U.S. Attorney MEMORANDUM* General,

Respondent.

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

Submitted April 21, 2023** San Francisco, California

Before: VANDYKE and SANCHEZ, Circuit Judges, and MURPHY***, District Judge.

Lead Petitioner Tadjoudine Fousseni petitioned for review of an order

from the Board of Immigration Appeals (BIA) dismissing his appeal of 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). *** The Honorable Stephen J. Murphy, III, United States District Judge for the Eastern District of Michigan, sitting by designation. 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.

1. We review for substantial evidence both the BIA’s dismissal and the

adverse credibility determination. See Shrestha v. Holder, 590 F.3d 1034, 1039

(9th Cir. 2010) (citations omitted). Credibility determinations are owed “special

deference,” and we “will only exercise our power to grant a petition for review

when the evidence compels a contrary conclusion.” Kaur v. Gonzales, 418 F.3d

1061, 1064 (9th Cir. 2005) (cleaned up).

Substantial evidence supports the BIA’s determination that Fousseni

failed to provide credible testimony to establish his eligibility for asylum and

withholding of removal. In his application for asylum, Fousseni described three

incidents that led him and his family to seek asylum. The BIA found that

Fousseni offered inconsistent testimony on all three incidents. The record does

not compel a contrary conclusion.

First, Fousseni gave inconsistent testimony on when, where, and how he

was allegedly attacked in August 2012. Fousseni stated that he was not tied up

during the alleged attack. But a corroborating witness stated that Fousseni was

tied up. To explain the discrepancy, Fousseni stated that the witness had not

actually observed the incident but had merely heard about it from Fousseni.

And he offered no other explanation for the discrepancy.

Second, Fousseni testified that his father was murdered while riding a

2 moped to the mosque. But his sworn declaration stated that his father was

murdered while walking to the mosque. Foussenni also testified that somebody

told him his father’s body was found in the bushes. But his declaration stated

that he was with the search party that found his father’s body. Compounding

the inconsistencies in his story, Fousseni testified that his father never made it to

the mosque the day that he was murdered, but the asylum application his wife

submitted stated that her father in-law was murdered while exiting the mosque.

When asked why her application differed from her husband’s testimony,

Fousseni’s wife testified that her application was correct. Fousseni’s only

explanation was that his wife was sick and unable “to keep a lot of things in her

head.”

Third, Fousseni’s asylum application provided that his daughter was

kidnapped and that his mother-in-law paid a $15,000 ransom before his

daughter was delivered at home after being tied up, beaten, and tortured. But

Fousseni testified that he had to travel to the forest to recover his daughter after

the ransom was paid. The only explanation that Fousseni offered for the

discrepancy was that his asylum application incorrectly recorded his statements.

But Fousseni then could not offer an explanation why he read and signed his

asylum application despite the untrue statements it contained. Moreover,

Fousseni’s wife testified that she received a ransom phone call immediately

after her daughter was kidnapped. But her written application provided that she

received a phone call the next day. There was also inconsistent testimony about

3 whether Fousseni’s wife saw the kidnapping occur, or whether she was told

about it.

Together, the discrepancies identified by the IJ and the BIA support the

adverse credibility finding. The agency provided Fousseni with a reasonable

opportunity to explain the perceived inconsistencies and was not required to

accept his explanations. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021).

We hold that there is no “evidence that compels a contrary conclusion” to the

IJ’s and BIA’s adverse credibility determination. Id. (cleaned up).

2. In addition, the BIA found that Fousseni failed to meaningfully challenge

the IJ’s denial of his CAT claim and therefore waived the issue on appeal.

Because Fousseni does not challenge this finding in his brief, we find this issue

waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

Fousseni’s petition fails. Accordingly, the derivative petitions of his wife

and daughter also fail. See Kumar v. Gonzales, 439 F.3d 520, 521, 525 (9th Cir.

2006) (denying petition for review as to derivative petitioners’ application

because the lead petitioner’s petition for review was denied.). The motion for a

stay of removal, Docket No. 3, is denied as moot. The temporary stay of

removal remains in effect until issuance of the mandate.

PETITION DENIED IN PART AND DISMISSED IN PART.