Elvis Ndum v. Merrick Garland ( 2021 )

FILED
NOT FOR PUBLICATION
OCT 13 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELVIS ACHU NDUM, No. 20-73481
Petitioner, Agency No. A213-187-604
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 7, 2021**
Portland, Oregon
Before: W. FLETCHER, IKUTA, and BRESS, Circuit Judges.
Petitioner Elvis Achu Ndum seeks review of the Board of Immigration
Appeals’ (“BIA”) order affirming the Immigration Judge’s (“IJ”) order denying his
applications for asylum, withholding of removal, and protection under 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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252and deny the petition for review.
“We review the denial of asylum, withholding of removal, and CAT claims
for substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir.
2019); see also Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013) (“Credibility
determinations are reviewed for substantial evidence.”). Under the substantial
evidence standard, we may grant the petition only if “the evidence not only
supports a contrary conclusion, but compels it—and also compels the further
conclusion that the petitioner meets the requisite standard for obtaining relief.”
Sanjaa v. Sessions, 863 F.3d 1161, 1164 (9th Cir. 2017) (quotation marks and
citation omitted).
1. Ndum first challenges the adverse credibility determination underlying
the denial of his applications for asylum, withholding of removal, and CAT
protection. A credibility determination should account for the “totality of the
circumstances, and all relevant factors,” which may include the applicant’s
demeanor, candor, responsiveness, inconsistency, and any falsehoods. 8 U.S.C.
§ 1158(b)(1)(B)(iii). We have held that, where, as here, a credible-fear interview
bears “sufficient indicia of reliability,” inconsistencies between an applicant’s
credible-fear interview and later testimony may form the basis of an adverse
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credibility determination. See Mukulumbutu v. Barr, 977 F.3d 924, 926 (9th Cir.
2020). Contrary to Ndum’s argument, there is no indication that the report of the
credible fear interview contained clerical errors.
Here, the IJ’s adverse credibility finding was based on various
inconsistencies between Ndum’s credible-fear interview and his later testimony as
well as implausibilities and omissions in the later testimony. In affirming the IJ,
the BIA relied on this same reasoning. Because the BIA offered “a legitimate
articulable basis” for upholding the adverse credibility determination, that was
supported by “specific, cogent reason[s],” the BIA’s determination is supported by
substantial evidence. Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002).
Since we uphold the adverse credibility determination, Ndum’s challenges to
the denial of his applications for asylum and for withholding of removal fail.
“Without credible testimony or sufficient corroborating evidence, [Ndum] cannot
show that he has a well-founded fear of persecution” based on a protected ground.
Mukulumbutu, 977 F.3d at 927. Because Ndum failed to satisfy his burden on
asylum, he necessarily fails to satisfy the more stringent standard applied to claims
for withholding of removal. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230
(9th Cir. 2016) (“A petitioner who fails to satisfy the lower standard of proof for
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asylum necessarily fails to satisfy the more stringent standard for withholding of
removal.”).
2. Ndum also challenges the denial of his application for CAT protection.
“An adverse credibility determination is not necessarily a death knell to CAT
protection.” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). We have
held that even where an applicant has been deemed not credible, “country
conditions alone can play a decisive role in granting relief under” CAT.
Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001).
While the country conditions evidence demonstrates that Anglophones
experience violence in Cameroon, it does not establish that it is more likely than
not that Ndum will be tortured by or with the consent or acquiescence of a public
official because of his Anglophone-status. Mukulumbutu, 977 F.3d at 927.
Substantial evidence thus supports the BIA’s determination that Ndum did not
satisfy his burden for CAT protection.
We decline to take judicial notice of the 2020 Cameroon country conditions
evidence. First, this evidence was not presented to the BIA. See 8 U.S.C.
§ 1252(b)(4) (“[T]he court of appeals shall decide the petition only on the
administrative record on which the order of removal is based.”). Second, there is
no basis upon which to view the updated country conditions evidence. See Gafoor
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v. INS, 231 F.3d 645, 655 (9th Cir. 2000) (explaining that Fisher v. INS, 79 F.3d
955 (9th Cir. 1996) (en banc) applies when country conditions change in
significant ways that are “so troubling, so well publicized, and so similar to earlier
coups” that the court would be “abdicating [its] responsibility” if it were to ignore
the situation).
PETITION DENIED.
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