Nkeng Njilem Johnson v. U.S. Attorney General

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 8, 2022
• Docket: 20-12783
• Status: Unpublished

Opinion

USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 1 of 11

[DO NOT PUBLISH]

In the

United States Court of Appeals For the Eleventh Circuit

____________________

No. 20-12783 ____________________

NKENG NJILEM JOHNSON, Petitioner, versus U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the Board of Immigration Appeals Agency No. A203-593-893 ____________________ USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 2 of 11

2 Opinion of the Court 20-12783

Before JORDAN, NEWSOM, Circuit Judges, and BURKE,* District Judge. BURKE, District Judge: Nkeng Johnson, a Cameroonian native and citizen, seeks review of an order by the Board of Immigration Appeals (“BIA”) affirming an Immigration Judge’s (“IJ’s”) decision. The IJ denied Johnson’s application for asylum, withholding of removal, and relief under the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”). After review of the record, and with the benefit of oral argument, we deny Johnson’s petition. I. Background Johnson entered the United States without valid immigra- tion documents on June 4, 2019. Four days later, a Border Patrol officer interviewed him in English without an interpreter. John- son signed a statement indicating that he understood the agent and that he had no questions about the interview. 1 Johnson was then referred for a credible fear interview with an asylum officer. 2

*Honorable Liles C. Burke, United States District Judge for the Northern District of Alabama, sitting by designation. 1 Johnson’s native language is Cameroonian Pidgin English. He says he has a limited English proficiency. 2Asylum officers conduct credible fear interviews when a person seeking entry into the United States is subject to expedited removal and he or she USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 3 of 11

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On August 1, 2019, the asylum officer tasked with interviewing Johnson wrote a memo regarding their meeting. In it, he ex- plained that he didn’t interview Johnson because Johnson an- swered his questions in Pidgin English and that no interpreter was available. On August 6, 2019, the Department of Homeland Security served Johnson with a Notice to Appear, charging him with re- movability under 8 U.S.C. § 1182(a)(7)(A)(i)(I) for not possessing valid entry documents when applying for admission to the United States. Johnson then applied for asylum, withholding of removal, and CAT relief. He based his requests on his imputed political opinion and his membership in a particular social group (Anglo- phone Cameroonians). Johnson claims he was twice arrested by the Cameroonian military. His first arrest occurred in September 2017 because he joined a protest over the Cameroonian government’s mistreat- ment of Anglophone Cameroonians. His second arrest occurred

tells Customs and Border Protection that he or she wishes to apply for asy- lum, fears persecution or torture, or fears returning to his or her home coun- try. While detained by Customs and Border Patrol, the asylum seeker re- ceives information about the credible fear interview process. Ordinarily, an asylum-seeker waits 48 hours to participate in the interview, but he or she may waive that waiting period. See U.S. CITIZEN AND IMMIGRATION SERVICES, QUESTIONS AND ANSWERS, CREDIBLE FEAR SCREENING, https://www.uscis.gov/humanitarian/refugees-and- asylum/asylum/questions-and-answers-credible-fear-screening (last visited Dec. 29, 2021). USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 4 of 11

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in October 2018 after Southern Cameroons National Council (“SCNC”) members met at his bar; he maintains that he was false- ly accused of being a member of this group. Johnson claims that he was beaten and detained for several days following both ar- rests. On December 11, 2019, the IJ held a merits hearing on Johnson’s applications. Ultimately, the IJ denied Johnson’s appli- cations. Explaining his reasoning, the IJ noted Johnson’s demean- or at the hearing and his testimony—which was inconsistent with the record evidence. Those inconsistencies, the IJ concluded, made Johnson a non-credible witness. And given that adverse credibility determination and Johnson’s failure to produce other evidence to support his claims, the IJ found denial appropriate. Johnson appealed to the BIA. The BIA affirmed—determining that the IJ’s factual findings were supported by substantial evi- dence. II. Legal Standards We review the IJ’s and the BIA’s decisions in this case be- cause the BIA agreed with much of the IJ’s reasoning. See Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009) (explaining that we review the BIA’s decision and, when the BIA agrees with the IJ’s findings, we review the IJ’s decision to the extent of that agreement). We review legal determinations de no- vo. Id. And we review fact determinations under the “highly def- erential substantial evidence test” whereby we “must affirm the BIA’s decision if it is ‘supported by reasonable, substantial, and USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 5 of 11

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probative evidence on the record considered as a whole.’” Ade- femi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en banc). Credibility determinations constitute fact findings that are reviewed under this deferential standard. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). An applicant may obtain asylum if he is a “refugee.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286–87 (11th Cir. 2005). To qualify as a refugee, he must be unable or unwilling to return to his country of nationality “because of persecution or a well- founded fear of persecution on account of” a protected ground. 8 U.S.C. § 1101(a)(42). These grounds include, among other things, political opinion and membership in a particular social group. Id. The asylum applicant bears the burden of proving statutory “ref- ugee” status with specific and credible evidence. Forgue, 401 F.3d at 1286–87. An adverse credibility determination alone “may be suffi- cient” to support the denial of relief. Id. at 1287. The IJ, however, must still consider all the evidence of persecution the asylum ap- plicant produced. Id. If the applicant produces no evidence in ad- dition to his testimony, the IJ may rely solely on an adverse credi- bility determination to deny the asylum application; if there is ad- ditional testimony, the adverse credibility determination will not alone be sufficient. Id. “The IJ must offer specific, cogent reasons for an adverse credibility finding.” Id. (cleaned up). A credibility determination may not be overturned unless the record compels it. Id. And the applicant shoulders the burden of showing that an USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 6 of 11

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adverse credibility finding wasn’t supported by “specific, cogent reasons” or wasn’t based on substantial evidence. Id. III. Discussion The IJ and BIA gave “specific, cogent reasons” for finding Johnson non-credible. And those reasons are supported by sub- stantial record evidence. The IJ and BIA identified inconsistencies between John- son’s hearing testimony and his earlier sworn statement from the interview with Customs and Border Patrol and statements in a supporting affidavit from a Cameroonian human-rights lawyer. The first inconsistency concerned the time he spent in custody following his two arrests. At his hearing, Johnson testified that he was detained for two weeks in 2017 following his first arrest and one month in 2018 following his second arrest. However, during his interview with Customs and Border Patrol, Johnson stated that he was detained for one month in 2017 and five months and two weeks in 2018. The Cameroonian lawyer, on the other hand, attested that Johnson was held for ten and then seven days, re- spectively. Johnson failed to adequately explain these inconsistencies. He contends that he couldn’t understand the Customs and Border Patrol agent’s questions, which were asked in English without a translator. His purported inability to understand the Border Patrol officer’s questions is contradicted, however, by evidence that: (1) he told the Border Patrol officer that he understood English USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 7 of 11

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and had no questions during their interaction; and (2) he an- swered each of the officer’s questions intelligibility and coherent- ly, including questions about the lengths of his detentions. 3 Johnson also testified at his hearing that because the Border Patrol officer woke him early in the morning, he told the officer “anything” so he could quickly end the interview. The IJ noted that Johnson’s own statement that he made up answers during that interview “affect[ed] his credibility one hundred percent.” Johnson’s contention that the adverse credibility determi- nation was based on discrepancies that aren’t central to his asy- lum claim is meritless. First, we can’t accept that the inconsisten- cies about the length of his detentions are less than central to his claim of past persecution. More important, however, the applica- ble statutory standard permits a trier of fact to base its credibility determination on “any inaccuracies or falsehoods . . . without re- gard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 8 U.S.C. § 1158(b)(1)(B)(iii). Even inconsistencies on relatively minor details may support an adverse credibility determination. See Xia v. U.S. Att’y Gen., 608 F.3d 1233, 1240–41 (11th Cir. 2010) (holding that “at least one in- ternal inconsistency” regarding the applicant’s age at the time of supposed persecution “and one omission” without evidence to

3Because substantial evidence supports the position that Johnson adequately understood the interview questions, we reject his assertion that the inter- view violated his due process rights. USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 8 of 11

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clarify the discrepancies “provide[d] ample support” for an ad- verse credibility finding). Johnson also contends that the IJ and the BIA failed to properly consider the country conditions report, which he con- tends corroborates his claim of past persecution. We disagree. The report describes incidents of government violence toward some Anglophone activists. But it says nothing about Johnson’s personal circumstances, including details about his detention or mistreatment by police or whether he personally would face harm if he returned to Cameroon. Given the inconsistencies in Johnson’s testimony and the record, as well as the lack of other corroborating evidence for his claims, substantial evidence supports the BIA’s denial of Johnson’s asylum application. Further, because Johnson failed to establish his eligibility for asylum, he has also necessarily failed to meet the higher standards for withholding removal and CAT relief. See Forgue, 401 F.3d at 1287–88 & n.4. PETITION DENIED. USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 9 of 11

20-12783 JORDAN, J., Concurring 1

JORDAN, Circuit Judge, concurring: I agree with the panel opinion in full. I write separately to discuss the concerning issue of language interpretation in this case. “The BIA deprives a petitioner of liberty without due pro- cess of law when it considers evidence that is not probative and whose admission is not fundamentally fair.” Indrawati v. U.S. Att’y Gen., 779 F.3d 1284, 1299 (11th Cir. 2015). Mr. Johnson made—but did not properly develop—an argument that his due process rights were violated because he was interviewed in Eng- lish, a language that he did not understand. He neither discussed the standard nor showed, as our precedents require in order to establish a due process violation, that (1) he “was deprived of lib- erty without due process of law” and (2) “the purported errors caused [him] substantial prejudice.” Lapaix v. U.S. Att’y Gen., 605 F.3d 1138, 1143 (11th Cir. 2010). “To show substantial prejudice, an alien must demonstrate that, in the absence of the alleged vio- lations, the outcome of the proceeding would have been differ- ent.” Id. Although Mr. Johnson did not make the requisite showing here, the record indicates that the government could, and should, have done more. Mr. Johnson understands a little English but mainly speaks Cameroonian Pigdin English, which is a separate language, despite its misleading name. See John Nkemngong Nkengasong, A Grammar of Cameroonian Pidgin 8–9 (2016) (“Cameroonian Pidgin [English] has a code of its own, a pattern of USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 10 of 11

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word formation and sentence structure, and a phonetic system which are not similar to English” as well as a vocabulary “derived from a variety of sources, including . . . indigenous languages, English[,] and French.”). Yet on June 9, 2019, a border patrol of- ficer interviewed Mr. Johnson in English. Before asking Mr. John- son any substantive questions, the officer made a statement in English to Mr. Johnson about the nature of the interview and asked Mr. Johnson if he understood. Mr. Johnson said that he did and then proceeded to answer the officer’s questions. In contrast, though, two months later, an asylum officer filed a memo saying that Mr. Johnson “could not effectively communicate [in] Eng- lish” because he spoke Cameroonian Pidgin English and only re- sponded in that language. Because no Cameroonian Pidgin Eng- lish translator was available, he did not interview Mr. Johnson. On his I-589 application for asylum and withholding of re- moval, Mr. Johnson wrote that his native language was Bangwa, that he spoke Pidgin English fluently, and that he was not fluent in English. He requested and received a Pidgin English interpret- er for the merits hearing. At that hearing and through the inter- preter, Mr. Johnson explained to the IJ that although he generally did not understand English, he could understand some things. He also testified that he could not read English. Even with the inter- preter, there were several moments of confusion due to transla- tion issues during the hearing. Much of this case turns on inconsistencies between state- ments Mr. Johnson made without an interpreter and statements USCA11 Case: 20-12783 Date Filed: 02/08/2022 Page: 11 of 11

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he made with an interpreter, but there is also the inconsistency between the border patrol officer who conducted an interview in English and the asylum officer who was unable to conduct an in- terview in English. Going forward, the government must ensure it interviews potential asylum applicants in a language that they actually speak and understand. To do any less would be both embarrassing and regrettable.