Lounchi v. Garland ( 2021 )

Appellate Case: 21-9534 Document: 010110624803 Date Filed: 12/28/2021 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT December 28, 2021
_________________________________
Christopher M. Wolpert
Clerk of Court
VINCENT N. LOUNCHI,
Petitioner,
v. No. 21-9534
(Petition for Review)
MERRICK B. GARLAND,
United States Attorney General,
Respondent.
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before HARTZ, McHUGH, and CARSON, Circuit Judges.
_________________________________
Petitioner Vincent Nkameni Lounchi is a native and citizen of the Republic of
Cameroon. An Immigration Judge (IJ) denied his applications for asylum, withholding of
removal, and relief under the United Nations Convention Against Torture (CAT) after
finding his testimony lacked credibility. The Board of Immigration Appeals (BIA)
dismissed his appeal, finding no clear error in the IJ’s adverse credibility determination.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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Petitioner seeks review of the BIA’s order. Exercising jurisdiction under 8 U.S.C.
§ 1252, we deny the petition.
BACKGROUND
The Department of Homeland Security (DHS) initiated removal proceedings,
alleging Petitioner was removable under 8 U.S.C. § 1182 (a)(7)(A)(i)(I), as an applicant
for admission without valid entry and travel documents. He admitted the factual
allegations and sought asylum, withholding of removal, and CAT relief on the ground
that he fled Cameroon to escape persecution based on his political opinion.
1. Testimony and Documents
Petitioner testified he joined the Southern Cameroons National Council (SCNC), a
political party that advocates for the independence of southern Cameroon, in 2015, and
that he fled Cameroon after being detained in harsh conditions, threatened, and beaten by
gendarmes because of his of his anti-government and separatist political opinion.
Petitioner testified he participated in a protest march organized by the SCNC in
2016 during which police surrounded the protesters and arrested many of them, but he
escaped. He testified further that during a 2017 protest march, an officer who had
arrested Petitioner for refusing to pay money at a checkpoint recognized him and told
other officers to arrest him, but he eluded them. Soon thereafter, he moved to another
city because he feared being arrested.
Petitioner also described an incident where, one morning at about 5:30 when he
was preparing to go to a 6:00 church service, he responded to a knock at the door,
thinking it was his friend he was staying with. He opened the door to two officers and
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tried to run back inside. The officers apprehended and arrested him. He testified that
they were in the house for only a few minutes. They took him to a gendarme camp
where they detained him in a crowded cell for eight days. Guards beat and interrogated
him twice daily, and doused him with dirty water before each beating. He sustained
wounds on his face, knees, legs, and laps. On the eighth day, while being transported to a
maximum-security prison, Petitioner escaped during a restroom break.
Petitioner returned to the city where he spent nights in different places to avoid
being identified and arrested. A family friend who was a police commissioner told him
to leave the country and gave him a copy of a warrant that had been issued for his arrest.
Petitioner claimed that, while he was en route to the United States, gunmen in
Colombia robbed the group he was travelling with, taking his passport and some of his
money. They did not take the other identification documents and the almost $300 in cash
he had when he arrived in the United States. He testified the robbers rummaged through
his bag and that he did not have all of his money in the bag.
Petitioner also submitted documentary evidence, including an official criminal
history document, his friend’s affidavit, and a photograph that he testified depicted his
arrest. He said an unknown neighbor took the picture and gave it to the friend who then
gave it to Petitioner’s wife. The friend’s affidavit said the neighbor showed him the
picture, but it did not say the neighbor gave him the picture or that he gave it to
Petitioner’s wife. The picture showed Petitioner with his hands handcuffed in front of
him. Petitioner testified the officers handcuffed him in front because he was struggling
and resisting arrest.
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It was daylight in the picture. After counsel for DHS pointed out that the sun did
not rise until 6:22 that morning so it would have been dark at 5:30, Petitioner insisted it
was light out when he was arrested and said the arrest occurred during the “dry season”
when “the sun comes out earlier.” R. at 329. He also said that it was about 5:30 when
the officers arrived and that some time passed by the time they dragged him outside
where the neighbor took the picture. When reminded of his earlier testimony that the
officers were inside for only a few minutes, he said he “wasn’t paying attention to the
clock . . . but it took a while.” R. at 364. And when questioned about his earlier
testimony that he was getting ready for a 6:00 church service when the officers arrived,
Petitioner insisted that it was typically light out when he walked to church. Counsel for
DHS asked the IJ to take administrative notice of the time of the sunrise the day of
Petitioner’s arrest as reflected in a printout from the internet. Petitioner’s counsel did not
object. The IJ granted the request, noting that the time of sunrise was a “scientific fact”
appropriate for administrative notice. R. at 365.
Petitioner also submitted what he said was the April 2017 arrest warrant he said
his police commissioner friend had given him and a June 2017 criminal history
document. When asked why the criminal history document showed no arrest warrants
against him, he said it was the result of the Cameroonian government’s dysfunction and
faulty record keeping.
2. The IJ’s Decision
The IJ denied Petitioner’s applications for relief after finding him not credible
because he “provided inconsistent testimony, many of his claims were implausible, he
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submitted documents that were not genuine, and his demeanor changed noticeably during
portions of cross-examination” when challenged about inconsistencies in his evidence.
R. at 84. In support of that determination, the IJ found the photo was “staged” and that
Petitioner’s testimony about it was “untruthful[].” Id. The IJ explained that (1) the photo
supposedly depicted Petitioner being dragged away, but it was “clear that the subjects in
the picture [were] not moving” and that the officers “posed to create a look that they”
were dragging him; (2) he did not convincingly explain why it was daylight in the picture
given his testimony regarding the time of his arrest; (3) contrary to his claim that he was
handcuffed with his arms in front because he was resisting arrest, he was likely
handcuffed with his arms in front because if his arms had been behind him “as would be
expected, he would have been dragged with his face towards the ground, which would
not have served [his] purposes in having his face appear in the picture”; and (4) his “story
about the photo’s origin [was] implausible” because it was unlikely an unknown neighbor
would be outside the friend’s house at 5:30 a.m. and take one “perfectly centered and
nearly perfectly timed” picture. R. at 85.
The IJ identified other aspects of Petitioner’s evidence that undermined his
credibility, including that it was “unclear who [he] actually is,” because he failed to prove
his identity, and his claim that robbers stole his passport but not his money and other
identification documents was implausible. R. at 85. The IJ also noted discrepancies
between what Petitioner told the asylum officer and what he said in his 2014 visa
application about his marital status, and the IJ did not believe his statement to the asylum
officer that he had forgotten his wife’s name and referred to her by the wrong name
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because their relationship “had been so bad.” R. at 86. Further, the IJ found the arrest
warrant was “not legitimate” because the official criminal history document showed there
were no outstanding warrants for him, and the body of the warrant was in French, not in
English and French, as a Cameroonian warrant would be. R. at 86 & n.5.
Finally, the IJ found Petitioner’s demeanor during cross-examination
demonstrated a lack of credibility. In contrast to his “calm” demeanor on direct
examination, Petitioner became defensive and animated when cross-examined about
inconsistencies in his story. The IJ also noted that Petitioner was “often evasive in
answering direct questions,” “went off on a tangent,” or referred to documents he had
with him “instead of just answering questions based on his recollection.” R. at 87.
3. The BIA’s Decision
The BIA dismissed Petitioner’s appeal, concluding the IJ’s adverse credibility
determination was “based on specific and cogent reasons” and was not clearly erroneous.
R. at 3. The BIA acknowledged Petitioner’s arguments challenging each of the IJ’s
findings, but found they did not “adequately reconcile[] the credibility issues” the IJ
identified. R. at 5. In particular, the BIA upheld the IJ’s findings that the arrest warrant
was not legitimate and that Petitioner’s testimony about the circumstances
surrounding his arrest and the photo was not credible. The IJ also upheld the IJ’s
finding that it was implausible that robbers would take Petitioner’s passport but not all of
his money, explaining that it was not “illogical or without support in inferences that may
be drawn from the evidence.” R. at 5. In so holding, the BIA noted that it might have
reached a different conclusion if it were the factfinder but recognized that it was not at
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liberty to “substitute its own view of the evidence” for the IJ’s. R. at 8. Finally, the BIA
found no clear error in the IJ’s demeanor finding. And, having concluded that the IJ’s
adverse credibility determination was not clearly erroneous, the BIA held that the IJ
properly denied Petitioner’s applications because without credible testimony, he could
not establish his eligibility for asylum, withholding of removal, or CAT protection.
DISCUSSION
Where, as here, a single BIA member issues a brief order deciding the merits of an
appeal, we review the BIA’s order and consult the IJ’s decision when necessary to
understand the grounds for the BIA’s decision. See Uanreroro v. Gonzales, 443 F.3d
1197, 1204 (10th Cir. 2006).
The BIA reviews an IJ’s credibility findings “for clear error, and only clear error.”
Kabba v. Mukasey, 530 F.3d 1239, 1244 (10th Cir. 2008). It may not substitute its
judgment for the IJ’s because when “there are two permissible views of the evidence . . .
the factfinder’s choice between them cannot be clearly erroneous.” Id. (internal quotation
marks omitted). When the BIA’s application of the clear error standard amounts to a
factual determination, we review its decision under the deferential substantial-evidence
standard. Kabba, 530 F.3d at 1244.
Under that standard, “our duty is to guarantee that factual determinations are
supported by reasonable, substantial and probative evidence considering the record as a
whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). We ensure that the IJ
gives “specific, cogent reasons for disbelieving [the alien’s] testimony,” Elzour v.
Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004) (internal quotation marks omitted), and
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does not base an implausibility finding on “speculation, conjecture, or unsupported
personal opinion,” id. at 1153. But we do not reweigh the evidence or “question
credibility findings that are substantially reasonable.” Ismaiel v. Mukasey, 516 F.3d
1198, 1205 (10th Cir. 2008) (internal quotation marks omitted). The agency’s factual
findings “are conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Thus, if the evidence and
reasonable inferences support conflicting versions of events, we may not disturb the
BIA’s choice between them. To reverse its decision “we must find that the evidence not
only supports [Petitioner’s] conclusion, but compels it.” I.N.S. v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992).
Petitioner contends the BIA erred by (1) upholding the IJ’s administrative notice
decision; (2) finding no clear error in the IJ’s adverse credibility determination; and
(3) failing to consider evidence apart from the adverse credibility determination.
1. Administrative Notice
Petitioner takes issue with the administrative notice decision because counsel for
DHS did not explain why the website was a credible and authoritative source. He also
contends the IJ did not evaluate “the reliability and scholarship of the information,” and
should have “substantiate[d] [the information DHS provided] with [the opinion of] an
expert witness.” Pet. Br. at 18-19.1
1
We note that, because Petitioner did not object to DHS’s administrative
notice request when given an opportunity to do so at the hearing, the BIA could have
declined to address the issue on waiver grounds. See Torres de la Cruz v. Maurer,
483 F.3d 1013, 1023 (10th Cir. 2007).
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An agency may take administrative notice of a fact that is “not subject to
reasonable dispute” because it is “capable of accurate and ready determination by resort
to sources whose accuracy cannot reasonably be questioned.” de la Llana-Castellon v.
I.N.S., 16 F.3d 1093, 1096 (10th Cir. 1994) (internal quotation marks omitted). Scientific
facts such as when the sun rose or set on a particular day are among “the kinds of things
about which courts ordinarily” take notice. Shahar v. Bowers, 120 F.3d 211, 214
(11th Cir. 1997); see also Delaware, L. & W.R. Co. v. Koske, 279 U.S. 7, 12 (1929)
(taking judicial notice of the time of sunrise and light conditions). And it is not
uncommon for courts to take notice of “factual information found on the world wide
web.” O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007).
The BIA rejected Petitioner’s challenge to the IJ’s decision because he failed to
“present any evidence or otherwise sufficiently demonstrate on appeal how the
administratively noticed fact is subject to reasonable dispute.” R. at 4. We agree—the
time of sunrise the day of Petitioner’s arrest is easily verifiable, and he presented no
evidence establishing either that the time shown on the printout was inaccurate or that the
website was an unreliable source.2
2. Adverse Credibility Determination
Petitioner next contends the BIA erred in concluding the IJ’s adverse credibility
determination was not clearly erroneous. Specifically, he claims the record does not
2
Petitioner’s citation to cases discrediting Wikipedia articles is unhelpful
because the website at issue here is not Wikipedia.
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support the IJ’s findings that the arrest photo was staged and that his story about the theft
of his passport was implausible.3 But he concedes “the IJ’s adverse credibility
determination is supported by permissible views of the evidence.” Pet. Br. at 27. While
he argues there is record support for a contrary finding, this argument is insufficient to
show the agency decision is unsupported by substantial evidence. See Elias-Zacarias,
502 U.S. at 481 n.1.
Considering the record as a whole, we conclude the BIA’s decision is supported
by substantial evidence. The IJ gave specific, cogent reasons for finding Petitioner not
credible and properly based that determination on inconsistencies in his testimony,
inconsistencies between his testimony and his documentary evidence, inconsistencies in
his documents, concerns about his demeanor, and the conclusion that key aspects of his
story were implausible. See 8 U.S.C. § 1158(b)(1)(B)(iii) (providing that an IJ “may
base a credibility determination on the [applicant’s] demeanor, candor, or
responsiveness,” the plausibility of his account, and inconsistencies in his statements,
“without regard to whether” they go “to the heart of the applicant’s claim”); Elzour,
378 F.3d at 1152. The BIA correctly rejected Petitioner’s assertion that the IJ was
required to credit his explanations. See Matter of D-R-, 25 I. & N. Dec. 445, 455 (B.I.A.
2011) (an IJ “is not required to accept a respondent’s assertions, even if plausible, where
there are other permissible views of the evidence based on the record.”). And while
3
Petitioner does not challenge and has therefore waived any arguments he
might have made regarding other aspects of the BIA’s review of the IJ’s adverse
credibility determination. See Kabba, 530 F.3d at 1248 (arguments not raised or
inadequately briefed are waived).
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reasonable minds could differ about the plausibility of Petitioner’s testimony regarding
his arrest, the photo, and the passport theft, substantial evidence—including the
administratively noticed fact of the time of sunrise the day of his arrest and the IJ’s
unchallenged demeanor finding—supports the BIA’s determination. See Chaib v.
Ashcroft, 397 F.3d 1273, 1278 (10th Cir. 2005) (recognizing that an incredibility
determination may be based on inherent inconsistencies in the applicant’s testimony, the
implausibility of his story, and testimonial demeanor).
3. Other Evidence
We also reject Petitioner’s contention that the BIA erred by denying his
applications for relief based solely on the adverse credibility determination.
An applicant’s testimony, if credible, may be enough to satisfy his burden of
establishing entitlement to relief. 8 U.S.C. § 1158(b)(1)(B)(ii)-(iii) (asylum); id.§ 1231(b)(3)(C) (withholding) (incorporating asylum standards); 8 C.F.R.
§ 1208.16(c)(2) (CAT relief). Conversely, if the agency determines that his testimony is
not credible, it may deny relief on that basis alone. See id.The record indicates that the IJ considered Petitioner’s other evidence and found it
insufficient to support his applications absent credible testimony from him. We presume
the BIA reviewed the complete record as well. See Batalova v. Ashcroft, 355 F.3d 1246,
1252 (10th Cir. 2004). The BIA mentioned some of Petitioner’s other evidence in
outlining the factual background and his testimony, and the fact that it did not expressly
discuss each piece of evidence or explain why the other evidence was insufficient to
overcome the adverse credibility determination does not mean it failed to consider his
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evidence. See Hadjimehdigholi v. INS, 49 F.3d 642, 648 n.2 (10th Cir. 1995). Its
decision appropriately focused on Petitioner’s credibility, and we find no error in its
conclusion that his lack of credible testimony prevented him from establishing his
entitlement to relief. See Matter of M-S-, 21 I. & N. Dec. 125, 129 (B.I.A. 1995) (“A
persecution claim which lacks veracity cannot satisfy the burdens of proof and persuasion
necessary to establish eligibility for asylum and withholding relief.”).4
Finally, Petitioner argues the BIA “failed to comply with its own regulations and
erred in failing to submit this case to a three-member panel for decision.” Pet. Br. at 2.
But he does not develop this argument beyond this one-sentence assertion, and he does
not even acknowledge the criteria for assigning a three-judge panel, see 8 C.F.R.
§ 1003.1(e)(6), much less argue those criteria were satisfied here. Accordingly, we
decline to address it. See Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007).
CONCLUSION
We deny the petition for review.
Entered for the Court
Joel M. Carson III
Circuit Judge
4
We are not persuaded otherwise by Petitioner’s citation to out-of-circuit
authority holding that an IJ may not deny relief on the basis of incredible testimony
alone if other objective evidence supports the applicant’s claim for relief. Those
cases are inapposite here because the other evidence Petitioner submitted in support
of his persecution claim was either not individualized (the country conditions
evidence) or not objective (his friends’ and family members’ affidavits and letters).
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