Mohndamenang v. Garland ( 2023 )

Case: 21-60380 Document: 00516635691 Page: 1 Date Filed: 02/06/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 6, 2023
No. 21-60380 Lyle W. Cayce
Clerk
Arafat Shimenyi Mohndamenang,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
Agency No. A203 600 957
Before Jones, Smith, and Graves, Circuit Judges.
Per Curiam:
Arafat Mohndamenang petitions for review of an order of the Board
of Immigration Appeals (“BIA”) affirming the denial by an immigration
judge (“I.J.”) of his application for asylum, withholding of removal, and pro-
tection under the Convention Against Torture (“CAT”). 1 Arafat requested
a stay of removal pending this petition for review; that request was carried
with the case. We deny the petition and the stay of removal.
1
Petitioner’s brief refers to him as “Arafat.” We do the same.
Case: 21-60380 Document: 00516635691 Page: 2 Date Filed: 02/06/2023
No. 21-60380
I.
Arafat is a native and citizen of Cameroon. He applied for admission
to the United States in 2019 and was subsequently charged with removability
under 8 U.S.C. § 1182(a)(7)(A)(i)(I). On November 13, 2019, he appeared
and admitted that he was removable as charged but announced his intention
to apply for asylum or withholding of removal based on his political opinion
and sought protection under the CAT.
At his hearing before the I.J., Arafat, represented by counsel, admit-
ted that he had no corroborative materials but testified that he feared return-
ing to Cameroon because the government was killing “English-speaking
Cameroonians” such as himself. He told the I.J. that he had been arrested
by the Cameroonian government and was tortured daily while in detention.
He testified that he had later been involved in a peaceful protest when the
military appeared and shot dead some of the participants. He subsequently
escaped Cameroon.
The I.J. issued an oral decision denying Arafat’s application because
his testimony was too vague to be credible and he had not corroborated his
claims. 2 The I.J. further stated the claims could have been corroborated via
“what could be reasonably available documents” such as “a letter from a
family member or a friend, or someone who can comport this story.”
In his appeal to the BIA, Arafat contended, in part, that the I.J. had
erred in finding that he was not credible and that the I.J. should have devel-
oped the record by asking him follow-up questions before making a credibility
determination. Arafat submitted the 2019 Cameroon country report, several
2
The I.J. additionally denied Arafat’s application because of the then-effective
third-country transit bar. That bar has subsequently been lifted and is not at issue in this
proceeding.
2
Case: 21-60380 Document: 00516635691 Page: 3 Date Filed: 02/06/2023
No. 21-60380
newspaper articles describing the ongoing crisis in Cameroon, and affidavits
from his wife, neighbor, family attorney, and uncle. Arafat asked the BIA to
remand to the I.J. for further factual development. The BIA agreed and
remanded “for consideration of the new evidence in the first instance, and
for reassessment of [Arafat’s] credibility,” and counseled that “the parties
should be allowed to submit additional pertinent evidence.”
Arafat appeared pro se before a new I.J. with his new evidence and re-
testified in more detail, but the new I.J. denied his application. This time,
the I.J. found that Arafat was credible but had not offered sufficient corrob-
orating evidence to support his testimony to establish his claim for asylum.
The I.J. found that because none of the affiants “actually have any personal
knowledge of the[] events” described in Arafat’s testimony, and because
Arafat “provided no other evidence of any injuries he stated he suffers,”
“essentially, the only thing respondent has to show that these incidents
actually occurred . . . is his own testimony.”
The I.J. held that “[e]ven if [Arafat] were to have been found to have
provided sufficient corroboration, the Court would, in the alternative, deny
his application for asylum because he failed to show past persecution or a
well-founded fear of persecution on account of a protected ground.” The
I.J. denied Arafat’s withholding-of-removal claim because it was “factually
related to an asylum claim, but the standard of proof is harder to meet than
the well-founded fear requirement for asylum.” Finally, the I.J. denied Ara-
fat’s CAT claim because first, “the harm [he] allegedly experienced did not
rise to the level of persecution”; second, he “failed in his burden to show it
[was] more likely than not he would be tortured by or at the instigation of or
with the consent or acquiescence of a public official if returned to Camer-
oon”; and third, there was not “independent evidence sufficient to meet
[his] burden of providing eligibility for protection under the [CAT].”
3
Case: 21-60380 Document: 00516635691 Page: 4 Date Filed: 02/06/2023
No. 21-60380
Arafat appealed to the BIA, which affirmed the I.J.’s denial on all
claims. The Board affirmed the denial of the asylum and withholding-of-
removal claims on account of Arafat’s lack of corroboration. The BIA then
affirmed the denial of CAT protection “for the reasons stated in the [I.J.’s]
decision, which includes his finding of the lack of independent evidence con-
cerning the respondent’s claimed fear of torture.”
Arafat timely petitioned this court for review, raising three issues:
first, whether the BIA erred in requiring him to provide additional specific
evidence supporting his credible testimony without following the procedures
laid out in Matter of L-A-C-, 26 I. & N. Dec. 516 (BIA 2015). Second,
whether the BIA ignored substantial record evidence, including country-
conditions evidence that corroborated his claims for asylum, withholding of
removal, and CAT protections. Third, whether the BIA erred in affirming
the denial of his CAT claims.
II.
“When considering a petition for review, this court has the authority
to review only the BIA’s decision, not the [I.J.]’s decision, unless the
[I.J.]’s decision has some impact on the BIA’s decision.” Wang v. Holder,
569 F.3d 531, 536 (5th Cir. 2009) (citing Mikhael v. INS, 115 F.3d 299, 302
(5th Cir. 1997)). “We review the BIA’s factual findings under the substan-
tial evidence standard” and do not disturb such findings unless the evidence
compels a contrary conclusion. Orellana-Monson v. Holder, 685 F.3d 511,
517–18 (5th Cir. 2012). We review legal conclusions de novo “unless a con-
clusion embodies the [BIA’s] interpretation of an ambiguous provision of a
statute that it administers.” Id. at 517 (alteration in original) (quoting Singh
v. Gonzales, 436 F.3d 484, 487 (5th Cir. 2006)). Such conclusions receive
Chevron deference. Id.4
Case: 21-60380 Document: 00516635691 Page: 5 Date Filed: 02/06/2023
No. 21-60380
III.
We begin with Arafat’s contention that the I.J. violated the procedure
for corroborating evidence as laid out by Matter of L-A-C-, 26 I. & N. Dec.
at 521–23.
Under the Immigration and Nationality Act (“INA”), “[t]he testi-
mony of an applicant may be sufficient to sustain the applicant’s burden with-
out corroboration.” 8 U.S.C. § 1158(b)(1)(B)(ii). But this is so only “if cor-
roboration is not reasonably available to the applicant.” Rui Yang v. Holder,
664 F.3d 580, 586 (5th Cir. 2011) (emphasis removed). In other words, cor-
roborating evidence must be provided unless the applicant demonstrates that
he “does not have the evidence and cannot reasonably obtain the evidence.”
8 U.S.C. § 1158(b)(1)(B)(ii).
The I.J. determined Arafat to be credible but dismissed his claims of
asylum and withholding of removal because Arafat had not provided what the
I.J. determined to be sufficient corroborating evidence. As part of that deci-
sion, the I.J. found that the affidavits Arafat had submitted from his wife,
uncle, neighbor, and family lawyer could not corroborate Arafat’s testimony
because none of the affiants had been present at the alleged beatings. The I.J.
further held that supporting documents would have been reasonably available
to Arafat.
On petition for review, Arafat contends that the agency erred by re-
quiring specific corroborating evidence from persons who were “present” at
Arafat’s protests and beatings without (a) giving Arafat a chance to explain
why that evidence was not reasonably available and (b) addressing whether
Arafat’s explanation was sufficient. He contends that the agency was re-
quired to do so because of the BIA’s interpretation of procedural require-
ments regarding corroborating evidence in Matter of L-A-C-:
[W]hen the [I.J.] determines that the applicant should have
5
Case: 21-60380 Document: 00516635691 Page: 6 Date Filed: 02/06/2023
No. 21-60380
submitted specific evidence to corroborate credible testimony
. . . the [I.J.] should: (1) give the applicant “an opportunity to
explain why he could not reasonably obtain such evidence,”
(2) “ensure that the applicant’s explanation is included in the
record,” [and] (3) “clearly state for the record whether the [ap-
plicant’s] explanation is sufficient . . . .”
Avelar-Oliva v. Barr, 954 F.3d 757, 770 (5th Cir. 2020) (fourth alteration in
original) (quoting Matter of L-A-C-, 26 I. & N. Dec. at 518–22).
The BIA’s interpretation of ambiguous terms in the INA is accorded
Chevron deference. 3 But we need not reach the issue of whether such pro-
cedures are in fact required by the INA because the I.J. never required
“specific corroborating evidence” from Arafat. The I.J. did not hold one
missing piece of evidence to be the sine qua non to corroboration. Instead, the
I.J. engaged in a comprehensive analysis of why Arafat’s credible testimony
was not corroborated by the evidence provided; the I.J. decided that such
evidence would have been reasonably available to Arafat. In such a case, the
BIA’s procedures do not apply. 4
IV.
Arafat further contends, however, that even if the I.J. did not err pro-
cedurally, the judge erred in determining that Arafat had not provided suffi-
cient corroborating evidence to grant his petitions for asylum and with-
3
Negusie v. Holder, 555 U.S. 511, 517 (2009) (quoting INS v. Aguirre-Aguirre,
526 U.S. 415, 425 (1999)); see also Avelar-Oliva, 954 F.3d at 770–71 (applying Chevron
deference to another of the BIA’s interpretations of 8 U.S.C. § 1158(b)(1)(B)(ii)).
4
This holding was confirmed by the BIA, which stated, “The record does not
reflect that the [I.J.] restrictively required any specific corroborating evidence. Rather,
the [I.J.] found that, overall, the respondent did not sufficiently corroborate his testimony
. . . .”
6
Case: 21-60380 Document: 00516635691 Page: 7 Date Filed: 02/06/2023
No. 21-60380
holding of removal. 5 Such a decision is highly discretionary: We do not over-
turn findings of fact unless we determine “not only that the evidence sup-
ports a contrary conclusion, but also that the evidence compels it.” Chen v.
Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
To support his testimony, Arafat showed the I.J. his injured foot and
provided country reports from 2018 and 2019 along with newspaper articles
documenting the situation. The government provided evidence showing that
Anglophones had engaged in “mass protests,” to which “security forces re-
sponded with bullets and teargas” on the same day that Arafat alleged he was
detained by the military. Arafat also provided affidavits from his wife, uncle,
neighbor, and family lawyer.
Arafat claims that the I.J. did not consider this record evidence and
asks for remand. See Sharma v. Holder, 729 F.3d 407, 412–13 (5th Cir. 2013)
(reversing a claim when the agency did not consider substantial record evi-
dence). The oral decision, however, makes clear that the I.J. did consider
all of Arafat’s evidence and properly decided that it was not sufficient to cor-
roborate his testimony.
Specifically, because none of the affiants had been present for the
events they recounted and were “merely reciting what the respondent or
someone else told them,” the I.J. held that the affidavits could not count as
corroboration. Without these, there was no primary-source evidence linking
Arafat to the claimed torture, military beatings, or detention, so the I.J.
found there to be insufficient corroboration. The pieces of evidence possibly
to the contrary—namely, Arafat’s injured toe and the country and newspaper
5
The decision was also affirmed by the BIA, so we may review. “We agree with
the [I.J.] that the respondent’s corroborative evidence did not sufficiently support his
testimony.” See Wang, 569 F.3d at 536.
7
Case: 21-60380 Document: 00516635691 Page: 8 Date Filed: 02/06/2023
No. 21-60380
reports—are not sufficient to show that the I.J.’s holding was substantially
in error. The country and newspaper reports, while making it possible that
Arafat suffered what he claimed to suffer, offer only circumstantial evidence.
In this posture, we “should accept the agency’s factual findings if those find-
ings are supported by substantial evidence on the record as a whole . . . [and]
should not supplant the agency’s findings merely by identifying alternative
findings that could [also] be supported by substantial evidence.” Arkansas v.
Oklahoma, 503 U.S. 91, 113 (1992) (citation omitted).
Arafat contends that “the government corroborated key elements of
his claims by conceding that he participated in the September 2017 protest
and by submitting newspaper accounts of the military responding to protests
with gunfire and tear gas.” Though the government did submit these ac-
counts, there is no evidence in the record that the government conceded
Arafat’s presence at the September 2017 protests. The portions of the rec-
ord cited by Arafat merely show the government’s questioning Arafat’s
account of the protest, which does not suffice to constitute concession.
Arafat further states that the I.J. was wrong to hold that he “provided
no evidence of any injuries he incurred as a result of his September 22, 2017,
arrest and subsequent 29-day detention.” At trial, Arafat tried to show the
I.J. the injured foot at the hearing, but the I.J. stopped him, saying “stop,
stop, stop.” It is unclear from the record whether Arafat actually showed the
I.J. his injured foot or whether the I.J. erred in stating that there was no
evidence of injuries.
Regardless, we deny Arafat’s petition. Under our deferential standard
of review, we may not grant review unless we find that “any reasonable ad-
judicator would be compelled to conclude to the contrary,” 8 U.S.C.
§ 1252(b)(4)(B), or that the evidence presented is “so compelling that no
reasonable factfinder” could find that he is ineligible for relief or protection
8
Case: 21-60380 Document: 00516635691 Page: 9 Date Filed: 02/06/2023
No. 21-60380
from removal,” INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992). The
I.J. found that “[e]ssentially, the only thing [Arafat] has to show that these
incidents actually occurred and the way they actually occurred is his own tes-
timony.” Without more, the fact of injury cannot show that it was sustained
in the alleged manner.
V.
Arafat disputes the I.J.’s dismissal of his CAT claim. Such a claim
requires him to show that it is “more likely than not that he or she would be
tortured if removed to the proposed country of removal.” 8 C.F.R.
§ 1208.16(c)(2). To determine whether a petitioner has made out this claim,
courts consider, inter alia,
(i) Evidence of past torture inflicted upon the applicant;
(ii) Evidence that the applicant could relocate to a part of the
country of removal where he or she is not likely to be tortured;
(iii) Evidence of gross, flagrant or mass violations of human
rights within the country of removal, where applicable; and
(iv) Other relevant information regarding conditions in the
country of removal.
8 C.F.R. § 1208.16(c)(3).
The I.J. dismissed Arafat’s CAT claim for three reasons. First, the
I.J. held that the one alleged incident of detention and resulting mistreatment
did not “rise to the level of persecution” and thus did not constitute past
torture. Second, he found that Arafat’s evidence failed to show it was more
likely than not that he would be tortured by a state actor if he returned to
Cameroon because “[i]n light of . . . recent and wide sweeping changes, it is
unlikely the government or military have any inclination to want to torture
the respondent should he be returned to Cameroon.” Finally, the I.J. noted
that “the record does not contain independent evidence sufficient to meet
[Arafat’s] burden of proving eligibility for protection under the [CAT].”
9
Case: 21-60380 Document: 00516635691 Page: 10 Date Filed: 02/06/2023
No. 21-60380
The BIA affirmed the I.J.’s holding on all three bases.
Arafat disputes all of this, claiming that he was tortured multiple
times, and even if he were not, one incident can constitute torture, and that
the I.J. was incorrect that country conditions in Cameroon had changed.
Without reaching the merits of these claims, however, we uphold the I.J.’s
dismissal of the CAT claim for the same reason we affirmed the dismissal of
the asylum and withholding-of-removal claims: There are no grounds to
reverse the I.J.’s holding that Arafat had not provided sufficient corroborat-
ing evidence to support his testimony.
The petition for review is DENIED. The request for a stay of re-
moval is DENIED as moot.
10
Case: 21-60380 Document: 00516635691 Page: 11 Date Filed: 02/06/2023
No. 21-60380
James E. Graves, Jr., Circuit Judge, concurring in the judgment:
Section 208 of the INA is ambiguous regarding “the procedural
requirements for submitting corroborating evidence.” Matter of L-A-C-, 26
I. & N. Dec. at 518. “The BIA should be accorded Chevron deference as it
gives ambiguous statutory terms ‘concrete meaning through a process of
case-by-case adjudication.’” Negusie v. Holder, 555 U.S. 511, 516–17 (2009)
(quoting INS v. Aguirre-Aguirre, 526 U.S. 415, 425 (1999)). I would adopt the
BIA’s interpretation of § 208(b)(1)(B)(ii) as laid out in Matter of L-A-C-:
[a]t the merits hearing, in circumstances where the
Immigration Judge determines that specific corroborating
evidence should have been submitted, the applicant should be
given an opportunity to explain why he could not reasonably
obtain such evidence. The Immigration Judge must also ensure
that the applicant’s explanation is included in the record and
should clearly state for the record whether the explanation is
sufficient.
26 I. & N. Dec. at 521 (citations omitted).
The majority concludes that “we need not reach the issue of whether
such procedures are in fact required by the INA because the I.J. never
required ‘specific corroborating evidence’ from Arafat.” This is because,
according to the majority, “[t]he I.J. did not hold one missing piece of
evidence to be the sine qua non to corroboration.” The BIA in Matter of L-A-
C- did not say that the procedures in § 208(b)(1)(B)(ii) only apply if the
evidence is the “sine qua non” to corroboration, and I would find that the
procedures may still apply even if there are multiple pieces of missing
evidence.
This case, however, falls under a category that the BIA sidestepped:
“circumstances in which the absence of corroborating evidence may be so
glaring that no explicit opportunity to explain its absence needs to be given.”
11
Case: 21-60380 Document: 00516635691 Page: 12 Date Filed: 02/06/2023
No. 21-60380
Matter of L-A-C-, 26 I. & N. Dec. at 521 n.4. Mohndamenang was given ample
opportunity over multiple proceedings to explain the lack of corroborating
evidence. During the first proceeding, the IJ said “I don’t have any
corroborative materials.” Mohndamenang testified that he was unable to
procure corroborating evidence at the time. On appeal from his first
proceeding, Mohndamenang submitted several pieces of evidence that he
claimed corroborated his account. The BIA remanded the case so that this
new evidence could be considered and so that “additional pertinent
evidence” could be submitted. During the next hearing, The IJ gave
Mohndamenang multiple opportunities to explain why several parts of his
story remained uncorroborated. His answers were insufficient.
These proceedings constituted an opportunity for Mohndamenang to
explain the lack of corroborating evidence. He did not. I agree that his
petition for review should be denied.
12