Claudien Francois v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CLAUDIEN FRANCOIS, No. 19-70004
Petitioner, Agency No. A209-129-571
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2020**
Seattle, Washington
Before: GOULD and FRIEDLAND, Circuit Judges, and BOUGH,*** District
Judge.
Claudien Francois, a citizen and native of Haiti, petitions for review of the
Board of Immigration Appeals’ (“BIA”) dismissal of his appeal from 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).
***
The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
Immigration Judge’s (“IJ”) denial of Francois’ application for asylum, withholding
of removal, and CAT protection. Because the parties are familiar with the facts and
procedural history of the case, we do not recite them here. We have jurisdiction
under 8 U.S.C. § 1252(a), and we deny the petition.
Where the BIA relies on the IJ’s order but does not merely provide a
boilerplate opinion, we review “the reasons explicitly identified by the BIA,” but do
not “review those parts of the IJ’s adverse credibility finding that the BIA did not . . .
otherwise mention.” Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th Cir. 2008). When
reviewing administrative findings, factual findings “are conclusive unless any
reasonable adjudicator would be compelled to conclude to the contrary[.]” 8 U.S.C.
§ 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Just because two
inconsistent conclusions can be drawn from the evidence “does not prevent an
administrative agency’s finding from being supported by substantial evidence.”
Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) (citation omitted). We
may not “reweigh the evidence” to make our own determination but must instead
determine if the evidence compels a conclusion contrary to the agency’s. Singh v.
INS, 134 F.3d 962, 969 n.14 (9th Cir. 1998).
Asylum applicants must show they meet the definition of a refugee. 8 U.S.C.
§ 1158(b)(1)(B)(i); see also 8 C.F.R. § 1208.13(a). A refugee is a person who has
experienced “[past] persecution,” or has “a well-founded fear of [future] persecution
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on account of [his] race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). When applying for
withholding of removal, applicants must show that their “life or freedom would be
threatened in [the country of removal] because of [their] race, religion, nationality,
membership in a particular social group, or political opinion.” 8 U.S.C. §
1231(b)(3)(A).
Substantial evidence supports the adverse credibility determination made by
the IJ here. Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011). The IJ based his
credibility determination on, among other factors, inconsistencies between
statements in Francois’ border interview and later statements in his asylum
application, credible fear interview, and live testimony. Specifically, Francois
asserted at his border interview that he did not have a fear of returning to his most
recent home country or his country of origin and that he had entered the United
States to seek employment, statements that he now denies having made.1
The IJ must consider and address all plausible and reasonable explanations for
inconsistencies underlying an adverse credibility determination. See Rizk v. Holder,
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The IJ cited additional inconsistencies in its adverse credibility determination that
the BIA did not mention in its order. Because substantial evidence supports the
agency’s finding as to the border interview inconsistencies, we need not consider
these other stated grounds. See Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir.
2011) (“We must uphold the IJ’s adverse credibility determination so long as one
of the identified grounds is supported by substantial evidence” and is not trivial.
(quotation marks and alteration omitted)).
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629 F.3d 1083, 1088 (9th Cir. 2010). But the IJ has done so here with respect to
Francois’ explanation that the border patrol agent did not ask him about his fear of
returning to his home country and wrote down an answer to a question that was never
asked. After addressing and reasonably rejecting this explanation, the IJ noted the
unlikelihood that Francois would flee to the United States for safety but not mention
this fear to the border patrol agent. These were not simply supplemental details that
were omitted, but crucial details undermining Francois’ credibility.
Francois’ argument that the IJ improperly treated the border interview
transcript as “infallible” is also wrong. Authenticated border interview statements
are presumptively reliable, see Espinoza v. INS, 45 F.3d 308, 310 (9th Cir. 1995),
and the totality of the circumstances here does not disrupt that presumption. See
Matter of J-C-H-F-, 27 I. & N. Dec. 211, 214 (BIA 2018). Although Francois’
allegations of being strip searched before his interview could qualify as a “special
consideration[]” that “may affect the reliability of his . . . answers,” Francois’ form
I-867A and I-867B nevertheless contain multiple indicia of reliability that the BIA
considered, including all of the factors discussed in Matter of J-C-H-F-. Id.; see also
Singh v. Gonzales, 403 F.3d 1081, 1089 (9th Cir. 2005). The IJ implicitly considered
Francois’ allegations but rejected them, concluding that other than his
“uncorroborated assertions, nothing in the record supports” the inference that the
border interview contained “information that is inaccurate or was obtained by
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coercion or duress.” The agency’s evaluation comports with Matter of J-C-H-F-’s
instruction to give weight to such special considerations, and we must give it
deference.
Francois asserts that because the border interview is a limited screening
designed only to identify the existence of a fear, the agency erred by expecting his
interview to include additional details. This argument is also unavailing. This case
is different from ones where the asylum seeker simply fails to “divulge every detail
of the persecution he or she sustained,” because Francois instead “affirmatively
denied any mistreatment.” Li v. Ashcroft, 378 F.3d 959, 963 (9th Cir. 2004),
superseded by statute on other grounds as stated in Ghulyan v. Holder, 500 F. App’x
695 (9th Cir. 2012).
For these reasons, the IJ’s adverse credibility determination was supported
by substantial evidence, and so the petition for review is DENIED.
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