Peter Ngwa v. Eric Holder, Jr. , 517 F. App'x 176 ( 2013 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 12-1956
PETER SUH NGWA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: March 21, 2013 Decided: April 5, 2013
Before DAVIS, KEENAN, and THACKER, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Danielle Beach-Oswald, Maureen J. Johnson, BEACH-OSWALD
IMMIGRATION LAW ASSOCIATES, PC, Washington, D.C., for
Petitioner. Stuart F. Delery, Principal Deputy Assistant
Attorney General, Leslie McKay, Assistant Director, M. Jocelyn
Lopez Wright, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Peter Suh Ngwa, a native and citizen of Cameroon,
petitions for review of an order of the Board of Immigration
Appeals (“Board”) dismissing his appeal from that part of the
immigration judge’s order denying his application for asylum. 1
Ngwa challenges both the adverse credibility finding and the
finding that his asylum application was frivolous. We deny the
petition for review.
The Immigration and Naturalization Act (“INA”)
authorizes the Attorney General to confer asylum on any refugee.
8 U.S.C. § 1158(a) (2006). It defines a refugee as a person
unwilling or unable to return to his native country “because of
persecution or a well-founded fear of persecution on account of
race, religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A) (2006).
An alien “bear[s] the burden of proving eligibility for asylum.”
Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2006), and can
establish refugee status based on past persecution in his native
country on account of a protected ground. 8 C.F.R.
§ 1208.13(b)(1) (2012). “An applicant who demonstrates that he
1
The Board did not disturb that part of the immigration
judge’s order granting Ngwa withholding of removal. The Board
remanded the case to the immigration judge for the purpose of
deciding whether Ngwa was eligible for relief under the
Convention Against Torture (“CAT”).
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was the subject of past persecution is presumed to have a well-
founded fear of persecution.” Ngarurih v. Ashcroft, 371 F.3d
182, 187 (4th Cir. 2004).
A determination regarding eligibility for asylum is
affirmed if supported by substantial evidence on the record
considered as a whole. INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992). Administrative findings of fact, including findings on
credibility, are conclusive unless any reasonable adjudicator
would be compelled to decide to the contrary. 8 U.S.C.
§ 1252(b)(4)(B) (2006). Legal issues are reviewed de novo,
“affording appropriate deference to the [Board]’s interpretation
of the INA and any attendant regulations.” Li Fang Lin v.
Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). This court will
reverse the Board only if “the evidence . . . presented was so
compelling that no reasonable factfinder could fail to find the
requisite fear of persecution.” Elias-Zacarias, 502 U.S. at
483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002).
Ngwa contends that the Board used the wrong standard
of review when it considered the immigration judge’s adverse
credibility finding under the totality of the circumstances
test. For asylum applications filed after the passage of the
REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302, a trier
of fact, “considering the totality of the circumstances and all
relevant factors,” may base a credibility determination on any
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inconsistency, inaccuracy, or falsehood “without regard to
whether [it] goes to the heart of the applicant’s claim.” 8
U.S.C. § 1158(b)(1)(B)(iii) (2006). As this court recently
held, “an [immigration judge’s] adverse credibility
determination need no longer rest solely on those matters
fundamental to an alien’s claim for relief under the INA.”
Singh v. Holder, 699 F.3d 321, 329 (4th Cir. 2012); see also Xiu
Xia Lin v. Mukasey, 534 F.3d 162, 164 (2d Cir. 2008) (In
evaluating credibility, an immigration judge “may rely on
omissions and inconsistencies that do not directly relate to the
applicant’s claim of persecution as long as the totality of the
circumstances establish that the applicant is not credible.”).
After reviewing the record, we agree with the Attorney
General that (1) Ngwa waived the argument by not presenting it
to the Board and (2) the totality of the circumstances test was
appropriate because Ngwa’s application was filed after the
effective date of the REAL ID Act. Pursuant to 8 U.S.C.
§ 1252(d)(1), “[a] court may review a final order of removal
only if . . . the alien has exhausted all administrative
remedies available to the alien as of right[.]” We have noted
that “an alien who has failed to raise claims during an appeal
to the [Board] has waived his right to raise those claims before
a federal court on appeal of the [Board’s] decision.”
Farrokhi v. INS, 900 F.2d 697, 700 (4th Cir. 1990); see also
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Gonahasa v. INS, 181 F.3d 538, 544 (4th Cir. 1999). Moreover,
we have also held that we lack jurisdiction to consider an
argument not made before the Board. Asika v. Ashcroft, 362 F.3d
264, 267 n.3 (4th Cir. 2004).
Ngwa was on notice that the immigration judge
considered his asylum application under the REAL ID Act.
Despite having notice, Ngwa did not challenge this determination
on appeal to the Board. Therefore, the claim is waived.
In any event, Ngwa’s asylum application, his second,
was filed after the REAL ID Act’s effective date. Ngwa’s first
asylum application was filed prior to the effective date, but it
was denied. Ngwa filed a defensive application for asylum in
September 2006, after he received the notice to appear and after
the REAL ID Act’s effective date of May 11, 2005. Because the
asylum application under consideration was filed after the REAL
ID Act’s effective date, the INA’s most recent provisions
regarding credibility and corroboration apply. See Singh, 699
F.3d at 328. Thus, the Board did not err applying the totality
of the circumstances test.
Ngwa also contends that the adverse credibility
finding is not supported by substantial evidence. We review
credibility findings for substantial evidence. A trier of fact
who rejects an applicant’s testimony on credibility grounds must
offer “specific, cogent reason[s]” for doing so. Figeroa v.
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INS, 886 F.2d 76, 78 (4th Cir. 1989). “Examples of specific and
cogent reasons include inconsistent statements, contradictory
evidence, and inherently improbable testimony.” Tewabe v.
Gonzales, 446 F.3d 533, 538 (4th Cir. 2006) (internal quotation
marks and citations omitted). This court accords broad, though
not unlimited, deference to credibility findings supported by
substantial evidence. Camara v. Ashcroft, 378 F.3d 361, 367
(4th Cir. 2004). If the immigration judge’s adverse credibility
finding is based on speculation and conjecture rather than
specific and cogent reasoning, however, it is not supported by
substantial evidence. Tewabe, 446 F.3d at 538.
We conclude that it is clear from the record that the
immigration judge found Ngwa was not credible insofar as he
claimed he suffered past persecution. We further conclude that
the adverse credibility finding was supported by specific and
cogent reasons. It was noted that Ngwa offered inconsistent
testimony regarding the number of days he was detained in 2004.
It was also noted that Ngwa’s two witnesses offered inconsistent
testimony regarding the events that supported Ngwa’s claim that
he was the victim of past persecution. Also, Ngwa’s testimonial
demeanor was called into question. In addition, Ngwa submitted
a fraudulent medical certificate in support of his claim that he
suffered injuries during a period of detention. The immigration
judge was free to reject Ngwa’s explanations for the
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discrepancies. Dankam v. Gonzales, 495 F.3d 113, 122 (4th Cir.
2007); Camara, 378 F.3d at 369.
Ngwa also challenges the ruling that his asylum
application was frivolous. An alien who “has knowingly made a
frivolous application for asylum,” after having been informed of
the consequences of submitting such an application, is
permanently ineligible for immigration benefits. 8 U.S.C.
§ 1158(d)(6) (2006). An asylum application is frivolous if any
of its material elements is deliberately fabricated. 8 C.F.R.
§ 1208.20 (2008). The Government bears the burden of
establishing that the application is frivolous. Matter of Y-L-,
24 I. & N. Dec. 151, 157-58 (B.I.A. 2007). “Because of the
severe consequences that flow from a frivolousness finding, the
preponderance of the evidence must support an Immigration
Judge’s finding that the respondent knowingly and deliberately
fabricated material elements of the claim.” Id., 24 I. & N.
Dec. at 157. The alien must be afforded sufficient opportunity
to explain the identified discrepancies, after which the
immigration judge must provide cogent and convincing reasons for
finding by a preponderance of the evidence that the applicant
knowingly and deliberately fabricated material elements of his
or her claim. Id. at 158-60.
A finding that the applicant knowingly submitted a
false or fraudulent submission that was material to the asylum
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application is a finding of fact that is reviewed for
substantial evidence. 2 See Siddique v. Mukasey, 547 F.3d 814,
816 (7th Cir. 2008); Aziz v. Gonzales, 478 F.3d 854, 857 (8th
Cir. 2007).
Ngwa argues that his right to confidentiality was
violated during the course of the overseas investigation that
led to the finding that he submitted a fraudulent medical
certificate. Under 8 C.F.R. § 208.6(a) (2012), “[i]nformation
contained in or pertaining to any asylum application . . . shall
not be disclosed without the written consent of the applicant,
except as permitted by this section or at the discretion of the
Attorney General.” Confidentiality is breached when information
pertaining to an asylum application is disclosed to a third
party in such a way that allows the third party to link the
identity of the alien to the fact that the alien has applied for
asylum. See U.S. Citizenship and Immigration Servs., Asylum
Div., Fact Sheet: Federal Regulations Protecting the
Confidentiality of Asylum Applicants (June 3, 2005). If it is
found that the asylum applicant’s confidentiality was breached
2
A finding that an asylum application is frivolous does not
preclude the alien from seeking withholding of removal. See 8
C.F.R. § 1208.20 (2012); see also Lin v. U.S. Dep’t of Justice,
455 F.3d 106, 112 n.2 (2d Cir. 2006) (statute barring all
immigration benefits should not be construed to bar withholding
of removal where deportation would result in dire persecution).
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in violation of § 208.6, the applicant must be given the
opportunity to establish a new claim for asylum, withholding of
removal, or relief under the CAT based on the breach. Anim v.
Mukasey, 535 F.3d 243, 253 (4th Cir. 2008).
The Board addressed this claim by noting that Ngwa was
raising a new argument that he failed to raise before the
immigration judge. The Board concluded that the issue was
waived and will not be reviewed because Ngwa did not raise it
before the immigration judge, citing In re J-Y-C-, 24 I. & N.
Dec. 260, 261 n.1 (BIA 2007) and In re Edwards, 20 I. & N. Dec.
191, 196-97 n.4 (BIA 1990). “[T]he failure to raise an issue
before the [immigration judge] properly waives the argument on
appeal to the [Board].” Torres de la Cruz v. Maurer, 483 F.3d
1013, 1023 (10th Cir. 2007) (finding that the Board properly
concluded that the issue was procedurally barred and, for the
same reason, declined to address the issue).
Ngwa argues that the issue was not waived because the
immigration judge ruled on the substance of the claim, finding
that his confidentiality was not violated. However, the
immigration judge also noted that Ngwa did not affirmatively
raise this issue and denied relief on the basis that Ngwa did
not claim that his confidentiality was violated. We conclude
that the Board, when faced with two possible rulings that result
in the same disposition, can choose to affirm one and ignore the
9
other. This court may affirm the Board’s order on the same
basis that was articulated by the Board. See Moab v. Gonzales,
500 F.3d 656, 659 (7th Cir. 2007). We conclude that the Board
did not err in finding that the confidentiality issue was
waived.
Ngwa also asserts that the immigration judge erred by
denying his motion to subpoena the agent responsible for the
overseas investigation. This court reviews the immigration
judge’s denial of a subpoena for abuse of discretion. See
Kaur v. INS, 237 F.3d 1098, 1099 (9th Cir. 2001); see also
Guevara Flores v. INS, 786 F.2d 1242, 1252 (5th Cir. 1986)
(same). Under 8 C.F.R. § 1287.4(a)(2)(ii)(B) (2012), an alien
seeking a subpoena “shall be required . . . to show
affirmatively that he/she has made diligent effort, without
success, to produce the same.” The immigration judge found, and
the Board agreed, that Ngwa did not affirmatively show that he
made a diligent effort to produce the witness. We note that
Ngwa’s claim that the Government stated that it intended to
produce the witness is not supported by the record. Because
Ngwa did not show he was diligent in this regard, we conclude
that it was not an abuse of discretion to deny the subpoena.
We also conclude that substantial evidence supports
the finding that the Government showed by a preponderance of the
evidence that Ngwa knowingly submitted a fraudulent document in
10
support of a material aspect of his claim that he suffered past
persecution. The Government submitted an affidavit signed by
the doctor who signed the medical certificate. In the
affidavit, the doctor admitted that he did not treat Ngwa, that
the contents of the medical certificate were dictated to him and
that he only prepared the medical certificate as a favor to
Ngwa’s wife. In his affidavit submitted in response, Ngwa
corroborated a portion of the doctor’s admission, when he stated
that he waited outside the doctor’s office while his wife
entered the office with the certificate for the doctor to sign.
The medical certificate was intended to support a material
aspect of Ngwa’s claim that he suffered serious injuries as a
result of being persecuted by the authorities.
We also note that despite being given the opportunity,
Ngwa failed to specifically challenge the contents of the
doctor’s affidavit, either through his own testimony or an
affidavit from his wife. We conclude that the finding that Ngwa
filed a frivolous asylum application was not made in violation
of his right to due process.
In light of the fact that we conclude that the adverse
credibility finding and the finding that Ngwa’s asylum
application was frivolous are supported by substantial evidence,
Ngwa’s remaining arguments are moot.
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We deny the petition for review. We dispense with
oral argument because the facts and legal contentions are
adequately presented in the materials before this court and
argument would not aid the decisional process.
PETITION DENIED
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