Leonard Green Malunga v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 27, 2018
• Docket: 17-13381
• Status: Unpublished

Opinion

Case: 17-13381 Date Filed: 09/27/2018 Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 17-13381 Non-Argument Calendar ________________________

Agency No. A086-980-156

LEONARD GREEN MALUNGA, a.k.a. Leonard Malunga Green, a.k.a. Leonard Malunga, Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

________________________

Petition for Review of a Decision of the Board of Immigration Appeals ________________________

(September 27, 2018)

Before MARCUS, JORDAN, and HULL, Circuit Judges.

PER CURIAM: Case: 17-13381 Date Filed: 09/27/2018 Page: 2 of 8

Leonard Green Malunga, a native and citizen of Malawi, entered the United

States on March 17, 2000 on a temporary visa that authorized him to stay in the

country up to six months. He overstayed this visa and, on July 29, 2015, the

Department of Homeland Security issued a Notice to Appear and sought removal.

Mr. Malunga conceded the charge of removability, but filed an application for

cancellation of removal. He also applied for asylum, withholding of removal, and

relief under the Convention Against Torture, alleging that his father was beaten

(and presumably killed) by the government and he had his finger cut off by the

same attackers due to his father’s political views, association with a human rights

group, and sexual orientation.

The Board of Immigration Appeals affirmed the Immigration Judge’s denial

of Mr. Malunga’s applications for relief. Now proceeding pro se, Mr. Malunga

appeals from that final order. After careful review of the record and the parties’

briefs, we dismiss the petition in part and deny the remainder of the petition. 1

I

We are obligated to inquire into subject-matter jurisdiction whenever it may

be lacking. See Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). We

review our subject-matter jurisdiction de novo. See Amaya-Artunduaga v. U.S.

1 We read Mr. Malunga’s pro se brief liberally, but “issues not briefed on appeal by a pro se litigant are deemed abandoned.” Ruga v. U.S. Att’y Gen., 757 F.3d 1193, 1196 (11th Cir. 2014) (quoting Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008)). The government moved to file its answer brief out of time. By separate order, that motion is GRANTED. 2 Case: 17-13381 Date Filed: 09/27/2018 Page: 3 of 8

Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006). The government contends that

we lack jurisdiction over the IJ’s discretionary denial of cancellation of removal

and over the dismissal of Mr. Malunga’s asylum petition on timeliness grounds.

We agree on both accounts.

Our review of the denial of cancellation of removal under 8 U.S.C. § 1229b

is limited. We are prohibited from reviewing “any judgment regarding the

granting of relief under [§] 1229b,” with the exception of “constitutional claims or

questions of law.” See Alhuay v. U.S. Att’y Gen., 661 F.3d 534, 549 (11th Cir.

2011) (alterations adopted, emphasis in original) (citing 8 U.S.C. §§

1252(a)(2)(B)(i) & 1252(a)(2)(D)) See also Jimenez-Galicia v. U.S. Att’y Gen.,

690 F.3d 1207, 1209 (11th Cir. 2012) (“We can review no discretionary

determinations about cancellation of removal, except those discretionary

determinations about which [p]etitioner presents a genuine constitutional claim or

question of law.”).

Mr. Malunga identifies a question of law—whether his conviction for child

abandonment is a crime of child abuse under 8 U.S.C. § 237(a)(2)(i)—but that is

not the grounds upon which the IJ’s denial of cancellation rested. Instead, after the

BIA remanded Mr. Malunga’s case because it determined that child abandonment

in Georgia was not categorically a crime of child abuse, the IJ denied cancellation

of removal on three other independent grounds. Mr. Malunga does not raise any

3 Case: 17-13381 Date Filed: 09/27/2018 Page: 4 of 8

constitutional claim or question of law related to those grounds. Nor could he.

The IJ specifically held that, even if Mr. Malunga met the eligibility requirements,

he would deny cancellation of removal as a matter of discretion. We lack

jurisdiction over this discretionary determination, so we must dismiss his petition

on this issue. See Alhuay, 661 F.3d at 549.

We likewise lack jurisdiction to review the determination that Mr.

Malunga’s asylum application was untimely under 8 U.S.C. § 1158(a)(3) because

it did not meet the one-year limit or present extraordinary circumstances. See

Chacon-Botero v. U.S. Att’y Gen., 427 F.3d 954, 957 (11th Cir. 2005). So, we

cannot review Mr. Malunga’s claim that the IJ erred by not finding that

extraordinary circumstances excused his asylum petition filed sixteen years after

his arrival in the United States. See id.; Fahim v. U.S. Att’y Gen., 278 F.3d 1216,

1218 (11th Cir. 2002).

II

Mr. Malunga also appeals the denial of his application for asylum,

withholding of removal, and CAT relief. He contends that the IJ clearly erred in

determining that his testimony was not credible. The government, for its part,

argues that substantial evidence supports the denial of the application because Mr.

Malunga failed to credibly establish past persecution or a well-founded fear of

4 Case: 17-13381 Date Filed: 09/27/2018 Page: 5 of 8

future persecution and because he failed to provide corroborating evidence to

support his claimed persecution.

“When the BIA issues a decision, we review only that decision, except to the

extent that the BIA expressly adopts the IJ’s decision.” Rodriguez v. U.S. Att’y

Gen., 735 F.3d 1302, 1308 (11th Cir. 2013). We review factual determinations,

including credibility determinations, under the substantial evidence test. See

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). Under this test,

we “must affirm the BIA’s decision if it is supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Al Najjar v.

Ashcroft, 257 F.3d 1262, 1284 (11th Cir. 2001) (quotation marks omitted).

“[A]n adverse credibility determination alone may be sufficient to support

the denial of an asylum application,” but “an adverse credibility determination

does not alleviate the IJ’s duty to consider other evidence produced by an asylum

applicant.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006). An

adverse credibility determination must be supported by “specific, cogent reasons,”

and once that determination is made the burden is on Mr. Malunga to show that the

“credibility decision was not supported by ‘specific, cogent reasons,’ or was not

based on substantial evidence.” See id. (quoting Forgue, 401 F.3d at 1287)

(alterations adopted). We agree with the government that he has not met this

burden.

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The adverse credibility determination is supported by several specific,

cogent reasons: several critical aspects of Mr. Malunga’s testimony before the IJ

were contradicted by the available documentary evidence and his own asylum

application. See Shkambi v. U.S. Att’y Gen., 584 F.3d 1041, 1049–50 (11th Cir.

2009) (holding that several inconsistencies between testimony before the IJ and

applicant’s prior statements supported adverse credibility determination); Ruiz, 440

F.3d at 1255 (“Indications of reliable testimony include consistency on direct

examination, consistency with the written application, and the absence of

embellishments.”).

In particular, Mr. Malunga testified at his April 8, 2016, removal hearing

that an unknown group of people came looking for his father in the middle of the

night. His father was not home, so they instead tortured Mr. Malunga by cutting

off his finger. Mr. Malunga testified that he did not go to the hospital for treatment

and never saw his father again after the incident. This story is inconsistent with his

application and a police report. In his application, Mr. Malunga stated that the

group who attacked him was from the government (not an unknown group). When

the IJ inquired further about this, Mr. Malunga explained that he was not sure, but

presumed it was people from the government because he was a politician and “was

fighting with the government.”

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The police report for the incident provides yet a different account. It states

that the attack was by a gang of rebels who assaulted Mr. Malunga during a

robbery, that one rebel bit his finger, and that he went to the hospital where his

finger was amputated. Notably, that police report also states that his father was

present during the assault and went to the hospital with Mr. Malunga, which is

inconsistent with Mr. Malunga’s testimony that he never saw his father after the

attack. Given these numerous inconsistencies, substantial evidence supports the

adverse credibility determination. See D-Muhumed v. U.S. Att’y Gen., 388 F.3d

814, 819 (11th Cir. 2004) (affirming adverse credibility determination when the “IJ

noted numerous inconsistencies between D-Muhumed’s asylum application, his

testimony at the hearing, and the documentary evidence.”).

Mr. Malunga’s petition for asylum, withholding of removal, and CAT relief

rested primarily on his own account of the attack in Malawi. Given the adverse

credibility determination, Mr. Malunga was obligated to provide sufficient

corroborating evidence to satisfy his burden of proof. See Yang v. U.S. Att’y Gen.,

418 F.3d 1198, 1201 (11th Cir. 2005) (“The weaker an applicant’s testimony,

however, the greater the need for corroborative evidence.”); Forgue, 401 F.3d at

1287. The BIA explained that Mr. Malunga’s limited additional evidence did not

support his claim, particularly because it was inconsistent with his testimony and

did not support that he was persecuted on the basis of his father’s political

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involvement or his sexual orientation. Without evidence necessary to meet his

burden to establish eligibility for asylum or withholding of removal and CAT

relief, his petition was properly denied. See id at 1287–88. See also Rodriguez

Morales v. U.S. Att’y Gen., 488 F.3d 884, 891(11th Cir. 2007) (holding that “[t]o

qualify for withholding of removal or CAT relief, an alien must establish standards

more stringent tha[n] those for asylum eligibility” and, therefore, an alien unable to

meet the burden for asylum will be unable to meet the burden for withholding of

removal or CAT relief based upon the same facts).

III

For the foregoing reasons, Mr. Malunga’s petition is dismissed in part and

denied in part.

PETITION DISMISSED IN PART; DENIED IN PART.