Sunday Amos Erepadei v. William P. Barr

• Court: Court of Appeals for the Sixth Circuit
• Decided: July 2, 2019
• Docket: 18-3827
• Status: Unpublished

Opinion

NOT RECOMMENDED FOR PUBLICATION File Name: 19a0330n.06

No. 18-3827

UNITED STATES COURT OF APPEALS FILED FOR THE SIXTH CIRCUIT Jul 02, 2019 DEBORAH S. HUNT, Clerk SUNDAY TUBOLAYEFA AMOS EREPADEI, ) ) Petitioner, ) ) ON PETITION FOR REVIEW v. ) FROM THE UNITED STATES ) BOARD OF IMMIGRATION WILLIAM P. BARR, Attorney General, ) APPEALS ) Respondent. ) )

BEFORE: SILER, BATCHELDER, and DONALD, Circuit Judges.

ALICE M. BATCHELDER, Circuit Judge. Sunday Tubolayefa Amos Erepadei

petitions this court for review of an order of the Board of Immigration Appeals (“BIA”) dismissing

his appeal of the denial of his application for asylum, withholding of removal, and claim for

protection under the Convention Against Torture (“CAT”). We deny the petition for review.

I.

Erepadei is a native and citizen of Nigeria who was admitted to the United States as a non-

immigrant B-2 visitor in November 2014. Erepadei overstayed his visa and the Department of

Homeland Security commenced removal proceedings in July 2017. He appeared before an

immigration judge (“IJ”) and conceded removability but applied for asylum, withholding of

removal, and protection under the CAT. He argued that as a member of the People’s Democratic

Party, a political group in Nigeria, he would be tortured if he were returned to Nigeria. He alleged No. 18-3827, Erepadei v. Barr

that a rival group, the All People’s Congress, kidnapped and beat him in 2014 for his association

with the People’s Democratic Party. The All People’s Congress is now in power in Nigeria.

The IJ denied Erepadei’s applications, finding that he was not a credible witness, that his

application for asylum was time-barred, and that he had failed to demonstrate that it is more likely

than not that he would be tortured if he were removed to Nigeria. The IJ’s adverse credibility

determination was based on, among other things, Erepadei’s inconsistent testimony regarding

social media usage, his lack of documentary corroboration for his allegations, and his failure to

report his alleged kidnapping to the police in Nigeria—despite working as a security agent for the

government at the time. Noting that an adverse credibility determination is “fatal to claims for

asylum and relief from removal,” Slyusar v. Holder, 740 F.3d 1068, 1072 (6th Cir. 2014), the IJ

denied Erepadei’s application on that basis. “[I]n the interest of a thorough decision,” the IJ also

held that Erepadei’s asylum application was time-barred. See 8 U.S.C. § 1158(a)(2)(B). The BIA

dismissed Erepadei’s appeal as to all claims, affirming the IJ’s determination that Erepadei was

not credible and that his application for asylum was time-barred.

Erepadei seeks review here, arguing that the BIA clearly erred in (1) finding that he was

not credible, and (2) holding that his asylum application was time-barred.

II.

We have jurisdiction to review a final order of removal from the BIA. 8 U.S.C. § 1252.

“Credibility determinations are considered findings of fact, and are reviewed under the substantial

evidence standard.” Sylla v. I.N.S., 388 F.3d 924, 925 (6th Cir. 2004). “We cannot reverse such

findings simply because we would have decided them differently.” Khalili v. Holder, 557 F.3d

429, 435 (6th Cir. 2009). Adverse credibility determinations are “conclusive unless any reasonable

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adjudicator would be compelled to conclude to the contrary.” Marikasi v. Lynch, 840 F.3d 281,

287 (6th Cir. 2016) (internal quotation omitted).

Erepadei argues that his testimony was credible, and that the BIA erred in finding

otherwise. He argues that the IJ’s adverse credibility determination was based on a

misunderstanding of how social media works. He restates his justification for why he did not

report his alleged kidnapping to the police, and he argues that his failure to seek medical treatment

at a hospital or tell his wife about the incident cannot serve as a basis for an adverse credibility

determination. We disagree.

Substantial evidence in the record supports the IJ and BIA’s adverse credibility decision.

Contrary to Erepadei’s claim here, the IJ did not fundamentally misunderstand how social media

works. Nothing in the record indicates that the IJ or BIA did not understand the difference between

the time a picture is taken and the time it is uploaded to the social media platform, as Erepadei

argues. Moreover, in arguing that “it is unfathomable for an adjudicator to base a credibility

finding on the fact that a world-class athlete did not have the same reactions to a beating as the rest

of us,” Erepadei misunderstands the IJ and BIA’s reasoning for the adverse credibility

determination. Erepadei’s physical and medical reaction to allegedly being beaten and kidnapped

is not at issue. Rather, the IJ and the BIA found it implausible that Erepadei was tortured to the

degree that he claimed, i.e., a degree that would warrant statutory protection, but was able to

conceal the resultant injuries from his wife that same day and to treat those injuries only with

“over-the-counter medication that he obtained at a local pharmacy.”

The IJ and BIA’s adverse credibility determination is supported by substantial evidence

and the record does not demand reversal—no reasonable adjudicator would be compelled to come

to a contrary conclusion. Marikasi, 840 F.3d at 287. “[O]nly one relevant inconsistency is required

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to uphold an adverse credibility determination.” Id. “An adverse credibility determination is fatal

to claims for asylum.” Sylusar, 740 F.3d at 1072. Thus, we need not address whether the BIA

erred in finding that Erepadei’s asylum application was time-barred.1 Additionally, because

Erepadei “fails to satisfy the lower burden of proof for asylum, it follows that he also fails to satisfy

the higher burden required for withholding of removal.” Zheng v. Lynch, 819 F.3d 287, 294 (6th

Cir. 2016). Furthermore, because Erepadei based his CAT claim on the same grounds as his

asylum and withholding claims, the IJ and BIA properly concluded that he did not meet his burden

of proof with respect to his CAT claim. “If the IJ determines the applicant’s testimony is

incredible, then the applicant cannot rely on his discredited testimony to meet his burden for CAT

relief.” Id. at 295.

III.

For the foregoing reasons, we DENY the petition for review.

1 We note that we generally “lack jurisdiction to review the denial of the asylum application on the ground of untimeliness.” Vincent v. Holder, 632 F.3d 351, 354 (6th Cir. 2011); see 8 U.S.C. § 1158. We only “retain our jurisdiction to review applications that were denied for untimeliness if the applicant seeks review of constitutional claims or matters of statutory construction.” Mandebvu v. Holder, 755 F.3d 417, 425 (6th Cir. 2014) (citation omitted). To the extent that Erepadei raises such a claim here based upon his ostensible membership in a certified class (see Rojas v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018)), review is unnecessary when, as here, an adverse credibility determination is dispositive of the claim.

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