Soryba Cisse v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 15, 2021
• Docket: 20-71333
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SORYBA CISSE, No. 20-71333

Petitioner, Agency No. A215-828-204

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

Respondent.

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

Submitted April 13, 2021** San Francisco, California

Before: McKEOWN, RAWLINSON, and BADE, Circuit Judges.

Soryba Cisse petitions for review of the Board of Immigration Appeals’

(“BIA”) dismissal of his appeal from an immigration judge’s (“IJ”) denial of his

applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We review the agency’s “legal conclusions

* 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). de novo and its factual findings for substantial evidence.” Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted).

Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition for review.

1. Substantial evidence supports the agency’s adverse credibility

determination. The IJ found material, non-trivial omissions and inconsistencies

between Cisse’s credible fear interview with an asylum officer and his hearing

testimony, and between his documentary evidence and his hearing testimony. See

Ren v. Holder, 648 F.3d 1079, 1089 (9th Cir. 2011).

Although Cisse alleged persecution on account of his religion, he did not

mention religion in the prehearing interview or in the detailed written statement

supporting his asylum application. Cisse did not simply fail to disclose details of

the alleged persecution, he affirmatively denied threats or harm on account of his

religion. See Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir. 2004), superseded by

statute on other grounds. See 8 U.S.C. § 1158(b)(1)(b)(iii).

The agency did not improperly rely on inconsistencies and omissions

between Cisse’s prehearing interview and his hearing testimony. Unlike Joseph v.

Holder, 600 F.3d 1235, 1243-44 (9th Cir. 2010), “procedural safeguards” were in

place to “ensure reliability,” including the administration of an oath at the outset of

the interview, the presence of a translator, and the existence of a written record of

the questions and answers. At the conclusion of the interview, Cisse agreed with

2 the asylum officer’s summary of his testimony and confirmed that he understood

the questions and the interpreter. See Li, 378 F.3d at 962-63 (upholding adverse

credibility determination based on discrepancies between petitioner’s statements in

airport interview and subsequent testimony); see also Matter of J-C-H-F-, 27 I. &

N. Dec. 211, 213 (B.I.A. 2018). The IJ found Cisse’s sworn statement to the

asylum officer reliable and he did not contest that issue on appeal to the BIA.

The agency also did not err in concluding that documentary evidence did not

rehabilitate Cisse’s testimony or independently meet his burden of proof. In the

absence of credible testimony or other evidence to meet his burden, Cisse’s asylum

and withholding of removal claims fail. Wang v. Sessions, 861 F.3d 1003, 1009

(9th Cir. 2017).

2. Cisse does not meaningfully challenge the BIA’s affirmance of the

denial of CAT protection. See Fed. R. App. P. 28(a)(8). Additionally, substantial

evidence supports the agency’s denial of CAT relief because Cisse failed to show

that it is more likely than not that he would be tortured by or with the consent or

acquiescence of the government if returned to Guinea. See Delgado-Ortiz v.

Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (holding generalized

evidence of violence and crime in petitioner’s home country was insufficient to

meet the standard for CAT relief).

3. Cisse’s claim that the IJ violated his due process rights also fails. To

3 demonstrate that an IJ committed a due process violation, a petitioner must show

that “the underlying IJ proceeding was ‘so fundamentally unfair that the alien was

prevented from reasonably presenting his case.’” Rizo v. Lynch, 810 F.3d 688, 693

(9th Cir. 2016) (citation omitted). Cisse argues that the IJ expressed frustration

during the proceedings. But “a mere showing that the IJ was unfriendly,

confrontational, or acted in an adversarial manner is not enough to” show that a

proceeding was fundamentally unfair. Id. (citations omitted).

5. We deny as moot the motion for stay of removal.

PETITION DENIED.