Feh v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 4 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BERNARD M. FEH, No. 21-343
Agency No.
Petitioner, A203-710-088
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 20, 2023
Phoenix, Arizona
Before: TALLMAN, OWENS, and BADE, Circuit Judges.
Bernard Feh, a native and citizen of Cameroon, appeals from the Board of
Immigration Appeals’ (“BIA”) dismissal of his appeal from the Immigration
Judge’s (“IJ”) denial of his applications for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). As the parties are
familiar with the facts, we do not recount them here. We have jurisdiction
under 8 U.S.C. § 1252, and we grant the petition.
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
We review only the BIA’s decision except to the extent that the BIA
expressly adopts the IJ’s decision or relies on its reasoning. Budiono v. Lynch,
837 F.3d 1042, 1046 (9th Cir. 2016). We review an adverse credibility finding
for substantial evidence, Kumar v. Garland, 18 F.4th 1148, 1153 (9th Cir.
2021), under which findings are “conclusive unless any reasonable adjudicator
would be compelled to conclude the contrary,” Flores Molina v. Garland, 37
F.4th 626, 632 (9th Cir. 2022) (citation omitted). We review de novo legal
questions, including whether the agency conducted cumulative effect review.
Salguero Sosa v. Garland, 55 F.4th 1213, 1219 (9th Cir. 2022).
1. The BIA found Feh not credible based on (1) an inconsistency
between his testimony and a letter from his brother regarding the year of Feh’s
detention by Cameroonian authorities and (2) his failure to testify about
previously disclosed details regarding a separatist attack on his school.
Substantial evidence does not support the adverse credibility finding.
First, the BIA relied on the fact that, although Feh consistently stated he
was detained in March 2018, his brother wrote a letter stating that it occurred in
March 2019. This discrepancy, however, cannot support the adverse credibility
finding because Feh, who was proceeding pro se at the IJ hearing, was not given
a chance to offer an explanation. See Zhi v. Holder, 751 F.3d 1088, 1093 (9th
Cir. 2014) (explaining that an IJ cannot base an adverse credibility
determination on a contradiction without first soliciting an explanation from the
petitioner). And while Feh explained to the BIA that his brother simply wrote
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down the wrong year, the BIA never addressed this explanation.
Second, any inconsistency between Feh’s statements and his brother’s
letter was manifestly trivial on this record. The mere misstatement of the year
of an event by Feh’s brother, who was not the one arrested, is insufficient to
support the adverse credibility finding. See id. at 1090-92 (concluding that a
date discrepancy of one year between the petitioner’s and his sibling’s accounts
of events was “utterly trivial,” and had “no bearing on [the petitioner’s]
veracity,” given the corroborating evidence in the record). Feh’s statements
have remained consistent since his initial interview with DHS officers.
The agency must consider Feh’s explanation for this inconsistency and,
should it still find him not credible, give specific and cogent reasons for
rejecting that explanation. Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th
Cir. 2022).
The BIA also found Feh not credible based on his omission of details at
his hearing before the IJ. When recounting an incident where separatists
attacked his school in May 2018, causing all the teachers to quit, he omitted
previously disclosed details that the separatists were armed with machetes and
locally fabricated rifles, chased Feh down, and made him beg for his life. This
omission was not probative of Feh’s credibility because the details were
previously disclosed to the agency and their omission undermined, rather than
bolstered, Feh’s asylum application. See Iman v. Barr, 972 F.3d 1058, 1068
(9th Cir. 2020) (explaining that “omissions are probative of credibility to the
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extent that later disclosures, if credited, would bolster an earlier, and typically
weaker, asylum application”). Rather than bolster his claim for asylum, Feh’s
omission arguably weakened his claim because those details supported his
claims of past persecution and fear of future persecution.
Furthermore, the record supports Feh’s explanation for the omission. The
BIA stated that Feh omitted the entire incident from his testimony and that
Feh’s only explanation was that he did not know he had to be specific. But as
Feh accurately recounted, he did describe the school incident before the IJ. And
Feh’s additional explanations that he was answering the IJ’s precise questions
and did not know he had to be more specific are supported by the IJ’s course of
questioning, which failed to develop the factual record. See Agyeman v. INS,
296 F.3d 871, 877 (9th Cir. 2002) (With a pro se applicant the IJ must
“scrupulously and conscientiously probe into . . . all the relevant facts.” (citation
omitted)).
Thus, neither ground relied on by the BIA is supported by substantial
evidence, and we remand for reconsideration of Feh’s credibility.
2. Contrary to its statement, the BIA did not issue an alternative
holding assuming Feh’s credibility. It never took as true his allegation that he
was threatened and chased from his school by separatists armed with machetes
and guns in May 2018, instead analyzing only “the threats that [Feh] received in
2016 and his detention in 2018.” As a result, it did not consider whether this
death threat combined with a physical confrontation at gunpoint, cumulatively
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with all other incidents in the record, established past persecution or a well-
founded fear of future persecution. See Salguero-Sosa, 55 F.4th at 1218
(holding that the agency committed legal error by failing to conduct cumulative-
effect review). We remand so that it may do so in the first instance. See
Gutierrez-Zavala v. Garland, 32 F.4th 806, 810 (9th Cir. 2022).
3. In a similar vein, the agency must consider “the aggregate risk of
torture from all sources” when evaluating a claim for CAT relief. Quijada-
Aguilar v. Lynch, 799 F.3d 1303, 1308 (9th Cir. 2015) (emphasis added). But
here, the IJ failed to consider whether Feh faces a risk of torture by the
anglophone separatists. The IJ also failed to analyze the May 2018 incident or
make a finding as to government acquiescence.
We remand Feh’s CAT claim so that the agency may reconsider its
adverse credibility finding and determine, in the first instance, whether Feh
qualifies for CAT relief considering his risk of torture from both the
Cameroonian government and separatist forces based on all evidence in the
record. See Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011) (holding that the
agency must consider all evidence relevant to the possibility of future torture).
4. Because we remand on these grounds, we need not reach Feh’s due
process argument.
The stay of removal remains in place pending a decision by the agency.
PETITION GRANTED; REMANDED.
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