Nkenglefac v. Garland ( 2022 )

Case: 19-60647 Document: 00516323396 Page: 1 Date Filed: 05/18/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
May 18, 2022
No. 19-60647
Lyle W. Cayce
Clerk
Giscard Nkenglefac,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of the Order of the
Board of Immigration Appeals
BIA No. A216 591 99
Before Higginson, Willett, and Ho, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Petitioner Giscard Nkenglefac, a native and citizen of Cameroon,
applied for admission into the United States on May 9, 2018. The
immigration judge (“IJ”), Agnelis Reese, denied Nkenglefac’s application
for relief from removal and ordered him removed to Cameroon after
determining that Nkenglefac was not credible. The Board of Immigration
Appeals (“BIA”) subsequently affirmed the IJ’s determination, and
Nkenglefac was removed to Cameroon. Nkenglefac now petitions for review
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of the BIA’s dismissal of his appeal from the IJ’s denial of application for
asylum, withholding of removal, and relief under the Convention Against
Torture (“CAT”). Nkenglefac challenges the IJ’s reliance on his U.S.
Customs and Border Protection (“CBP”) and asylum credible fear
interviews that were not entered into the hearing record of the removal
proceeding, nor, indeed, raised in that hearing at all, to make an adverse
credibility finding.
I.
A.
Nkenglefac testified before the IJ1 that he was a native and citizen of
Cameroon, living in the city of Muyuka. After graduating high school in
2008, he was prevented from obtaining further education because he spoke
English instead of French. In 2013, after working two other jobs, Nkenglefac
bought a taxi and became a taxi driver.
In January 2014, Nkenglefac became a member of the Southern
Cameroon National Council (“SCNC”), a Cameroonian political party. As
a member of the party, Nkenglefac organized and attended political meetings,
protests, and rallies. He also attempted to recruit new party members. The
SCNC’s goal was for the English-speaking southern part of Cameroon to
secede from Cameroon. On cross-examination, he acknowledged that the
government of Cameroon considers the SCNC to be a criminal organization.
Nkenglefac was arrested in January 2017, while attending a secret
SCNC meeting at a house in Muyuka. There were approximately 80 to 100
people present when police arrived. Some people fled and escaped; others,
including Nkenglefac, were caught and arrested. Nkenglefac was held at a
police station for seven days before his release. At the time of his arrest,
1
The information contained in the following section of this opinion was taken from
the hearing record, which – except as discussed below – has not been contested.
2
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police forced him to stand with his arms over his head and jump like a frog
for 30 minutes. Once Nkenglefac arrived at the police station, police
interviewed him for 10 minutes and then placed him in an unventilated cell.
The police beat him with a baton every morning while questioning him about
the leadership of the SCNC, and they refused to offer him food. Nkenglefac
suffered pain but did not suffer any physical injuries from this incident. Prior
to Nkenglefac’s release, police ordered him to sign a document stating that
he would no longer participate in any SCNC activities.
The following month, Nkenglefac attended a secret SCNC meeting
in the city of Lilale, approximately 40 minutes from Muyuka. Police, security
officers, and soldiers broke up the meeting and attempted to arrest those
present. Six officials caught Nkenglefac as he attempted to flee. They began
beating him with batons and fists; they also kicked him. One official grabbed
Nkenglefac’s arm and dislocated his shoulder, and two other officials beat
him with guns until he lost consciousness. The police took Nkenglefac to the
police station briefly before he was released. His family took him to a local
hospital, which did not admit him. His family then took him to a regional
hospital in the city of Buea, which was approximately one hour from Muyuka.
Nkenglefac regained consciousness in the hospital, where he remained for 45
days. He suffered swelling, bruising, blood clots on his eyes, and restricted
arm movements due to his shoulder injury.
After his release from the hospital, Nkenglefac stayed in Buea and
lived with his aunt for about a month. He then returned to his home in
Muyuka and learned that the police had issued a warrant for his arrest. Rather
than stay and face the charges, Nkenglefac returned to Buea in May 2017 and
rented an apartment. He remained in Buea for approximately 8 to 12 months.
Nkenglefac’s next encounter with police happened in Buea in 2018.
Police approached him while he was in his taxi distributing flyers that
encouraged all English-speaking southern Cameroonians to engage in a
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general strike. When police approached his vehicle, Nkenglefac sped off. The
police pursued him for 15 to 20 minutes but were unable to catch him.
Nkenglefac wrecked his taxi into some water near a banana plantation. A
passerby took him to Muyuka. He then fled to the city of Kumba. A friend
later told him that his taxi had been burned and that the police were looking
for him.
Upon learning that the police were looking for him, Nkenglefac fled to
Lagos, Nigeria, where he stayed for approximately two weeks. At that point,
Nkenglefac learned that Nigerian police were arresting SCNC members and
sending them back to Cameroon. Nkenglefac attempted to use his
Cameroonian passport to depart Nigeria for Ecuador; however, he was
stopped and almost arrested. Nkenglefac returned to the hotel where he had
been staying. The next day, he smuggled himself back into Cameroon,
avoiding official reentry. He hid on a plantation farm in Muyuka for two to
three weeks.
A family member was eventually able to arrange Nkenglefac’s
departure from Cameroon. He left Muyuka for Douala, a large city in
Cameroon, where he was able to use his Cameroonian passport to fly from
Cameroon to Rwanda. He then traveled to South Africa, Brazil, Peru, and,
finally, Ecuador. He arrived in Ecuador in March 2018, and he spent
approximately 10 days there. After leaving Ecuador, Nkenglefac traveled to
Colombia with the assistance of a Cameroonian living in Ecuador. He then
spent two months travelling to the United States, eventually reaching the
country in May 2018. Upon arrival to the United States, Nkenglefac turned
himself in to Immigration Officers at the border.
During Nkenglefac’s travels to the United States, he was in contact
with a cousin in Cameroon. His cousin informed him that the military went
to his family home and attacked his younger brother, who was also involved
in SCNC protests, beating him to death. His family home was also burned
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down. After speaking with his cousin, Nkenglefac had no further contact with
his family.
During cross-examination and upon questioning by the IJ, Nkenglefac
provided further information about his travels from Cameroon to the United
States. For example, Nkenglefac was in Costa Rica for six days. He did not
seek asylum there, but he did obtain an entry permit and received
transitionary permanency status, which authorized Nkenglefac to remain in
Costa Rica for 25 days and gave him the ability to apply to stay longer.
Additionally, Nkenglefac stated that he worked while he was staying in
Nicaragua and that he lost his Cameroonian passport, phone, and money
when the boat he was riding in capsized.
The IJ also inquired about the death of Nkenglefac’s father.
Nkenglefac explained that his father died in November 2017, while
Nkenglefac was still living in Cameroon. At that time, soldiers were
conducting a crackdown in Muyuka. They were going house to house,
searching for weapons. The soldiers seized his father’s farming tools and,
during the search of the house, attempted to seize his father’s hunting rifle.
His father struggled with the soldiers over the gun and was shot in the chest
during the struggle. He died of his injuries four to five days later.
B.
On November 20, 2018, the IJ issued her opinion, deciding that
Nkenglefac was not credible. The IJ identified several omissions and
inconsistencies, highlighting that, in his declaration in support of his
application for relief from removal, Nkenglefac stated that he had been
arrested “several” times but provided different answers in both his CBP
interview (one arrest during a strike in 2017) and his credible fear interview
(two arrests). Secondly, the IJ observed that during his credible fear
interview, Nkenglefac relayed that his family’s home was searched, and his
father’s tools were seized, but he apparently did not mention that his father
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was shot and killed during the incident. Highlighting these alleged
inconsistencies, the IJ denied Nkenglefac’s application for relief from
removal based on lack of credibility.2
Because Nkenglefac had failed to demonstrate that he was eligible for
asylum, the IJ concluded that he had also failed to demonstrate that he was
entitled to withholding of removal. Finally, the IJ concluded that Nkenglefac
was not entitled to relief under the CAT because his claim was based on his
testimony, which was not credible, and because he had failed to provide
corroborating evidence. Therefore, the IJ denied Nkenglefac’s application
for relief from removal and ordered him removed to Cameroon.
C.
Nkenglefac timely appealed to the BIA. He argued that the IJ erred
by finding that his testimony was not credible because the finding was based
on perceived inconsistencies drawn from documents never presented at the
removal hearing, namely, the government summaries of his interviews with
CBP and asylum officers. He asserted that the IJ’s reliance on inferences
drawn from these documents, without giving him an opportunity to explain
or challenge the alleged inconsistencies, violated his due process rights. He
argued that the summaries of those interviews were consistent with his
testimony and that many of the inconsistencies or omissions perceived by the
IJ were minor and easily explainable. Nkenglefac also challenged the IJ’s
determination that he failed to provide sufficient corroborating evidence. He
argued that his testimony alone was credible and provided a sufficient basis
2
Alternatively, the IJ found that Nkenglefac failed to provide sufficient
corroborating evidence to support his claims of past persecution and a well-founded fear of
future persecution on account of a protected ground. The BIA upheld these findings on
the explicit assumption of an “[a]bsen[ce] [of] credible testimony.” Finally, the IJ refused
to consider evidence submitted by Nkenglefac (his Exhibit 5), which was submitted two
days after the discovery deadline.
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to establish past persecution, and that he provided as much documentary
evidence as was reasonably available to him. He also disputed the IJ’s
determination that he failed to carry his burden of establishing past
persecution or a well-founded fear of future persecution.
In a divided opinion, the BIA upheld the IJ’s adverse credibility
inference drawn from Nkenglefac’s interviews with CBP and asylum
officers. Moreover, the BIA majority stated that Nkenglefac had waived any
contrary argument by failing to raise it before the IJ. The BIA specifically
noted the alleged inconsistencies concerning the number of times Nkenglefac
was arrested and the omission of his father’s 2017 shooting death in his
credible fear interview. The BIA did not address or rely on any other
inconsistency in reaching its determination.3 Accordingly, the BIA agreed
with the IJ’s determination that Nkenglefac failed to establish his eligibility
for asylum, withholding of removal, or relief under the CAT and dismissed
Nkenglefac’s appeal. A member of the panel dissented, asserting that the
adverse credibility determination was erroneous; that the IJ improperly
relied on evidence not in the record; that the evidence, even if properly
considered, was generally consistent with his later claims; and that the IJ
should have afforded some weight to the documentary evidence contained in
Exhibit 5.
Nkenglefac filed a timely petition for review in this court, seeking a
stay of removal, which was denied, and Nkenglefac was removed to
Cameroon.
3
The BIA further affirmed the IJ’s decision to exclude and give no weight to the
untimely filed evidence in Exhibit 5, on the ground that the refusal to do so was not clearly
erroneous.
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II.
Nkenglefac seeks review of the decision of the BIA, issued on August
1, 2019. On appeal, we review only the decision of the BIA, unless the IJ’s
decision impacted the decision of the BIA. See Efe v. Ashcroft, 293 F.3d 899,
903 (5th Cir. 2002). In this case, the BIA determined the IJ’s adverse
credibility finding was not clearly erroneous; therefore, we have the authority
to review those portions of the IJ’s decision that impacted the BIA, in
addition to the BIA’s decision. Id. Factual findings are reviewed for
substantial evidence and legal determinations are reviewed de novo. Lopez-
Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001) (per curiam).
Constitutional challenges—such as a due process challenge—are reviewed
de novo. See Altamirano-Lopez v. Gonzales, 435 F.3d 547, 549 (5th Cir. 2006)
(per curiam) (citing Soadjede v. Ashcroft, 324 F.3d 830, 831 (5th Cir. 2003)
(per curiam). Under the substantial evidence standard, this court will not
overturn a factual finding unless the evidence compels a contrary result.
Martinez-Lopez v. Barr, 943 F.3d 766, 769 (5th Cir. 2019) (per curiam).
III.
Nkenglefac’s removal to Cameroon necessitates this court’s
consideration of its jurisdiction. “This Court must examine the basis of its
jurisdiction, on its own motion, if necessary.” Mosley v. Cozby, 813 F.2d 659,
660 (5th Cir. 1987) (per curiam). “A moot case presents no Article III case
or controversy, and a court has no constitutional jurisdiction to resolve the
issues it presents.” Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999).
“An action is moot where (1) the controversy is no longer live or (2) the
parties lack a personal stake in its outcome.” Rocky v. King, 900 F.2d 864,
867 (5th Cir. 1990). Events occurring after a district court’s entry of
judgment may render an appeal moot. See Bailey v. Southerland, 821 F.2d 277,
278-79 (5th Cir. 1987) (per curiam).
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“In cases challenging a BIA decision, the petitioner’s removal from
the United States generally renders the petition moot unless the petitioner
would suffer collateral legal consequences from the challenged decision.”
Mendoza-Flores v. Rosen, 983 F.3d 845, 847 (5th Cir. 2020). If this court were
to uphold the BIA’s decision, Nkenglefac would “suffer an automatic
‘period of inadmissibility following removal.’” Arulnanthy v. Garland, 17
F.4th 586, 592 (5th Cir. 2021) (citation omitted). An automatic period of
inadmissibility is a “concrete disadvantage” that is “imposed as a matter of
law” and, as such, constitutes an adverse collateral consequence. See Alwan
v. Ashcroft, 388 F.3d 507, 511 (5th Cir. 2004). Thus, Nkenglefac’s removal
does not render this case moot.
IV.
Nkenglefac argues that the IJ erred as a matter of law by drawing
negative credibility inferences from summaries of his CBP and credible fear
interviews because neither interview was submitted into the record during
his proceeding, much less adverted to. Nkenglefac also argues that he did not
waive this argument because he could not have raised the issue before the IJ
given that he had no notice the IJ would rely on these documents prior to
issuance of her decision.
A.
This court has previously held that reliance on records of credible fear
and asylum interviews generally is not improper and that discrepancies
among an applicant’s credible fear interview, other records, and testimony
can be considered in deciding credibility. See Avelar-Oliva v. Barr, 954 F.3d
757, 764-65, 767-69 (5th Cir. 2020) (affirming adverse credibility
determination due to variances between credible fear interview and
testimony); Singh v. Sessions, 880 F.3d 220, 226 (5th Cir. 2018) (same);
Arulnanthy, 17 F.4th at 593-95 (same). “An IJ may rely on any inconsistency
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or omission in making an adverse credibility determination as long as the
totality of the circumstances establishes that an asylum applicant is not
credible.” Singh, 880 F.3d at 225 (cleaned up).
However, under BIA precedent, “an adverse credibility
determination should not be based on inconsistencies that take an alien by
surprise.” Matter of Y-I-M-, 27 I. & N. Dec. 724, 726-29 (BIA 2019) (quote
at 726).4 Correspondingly, we have been clear that “an adverse credibility
determination . . . ‘must be supported by specific and cogent reasons derived
from the record.’” Singh, 880 F.3d at 225 (emphasis added) (quoting Wang v.
Holder, 569 F.3d 531, 537 (5th Cir. 2009)); see also Meza Benitez v. Garland,
No. 19-60819, 2021 WL 4998678, at *3 (5th Cir. Oct. 27, 2021) (unpublished)
(per curiam).
Relatedly, this court has approved, but not required, that petitioners
should be given the opportunity to explain any non-obvious discrepancies that
may bear on their credibility. See Mpesse v. Garland, No. 20-61207, 2021 WL
4256177, at *5 (5th Cir. Sept. 17, 2021) (unpublished) (per curiam) (“When
determining if an inconsistency is obvious, the key question is whether it is
reasonable to assume that the applicant was aware of it and had an
opportunity to offer an explanation before the IJ relied on it.” (cleaned up)).
The court in Mpesse instructively explained that because the IJ had
4
In addition to the BIA, at least two circuits have imposed limitations on the degree
to which an IJ can rely on inconsistencies to make an adverse credibility finding without
providing the petitioner with an opportunity to respond or explain the perceived
discrepancies. See Rizk v. Holder, 629 F.3d 1083, 1088 (9th Cir. 2011) (stating that “an IJ
cannot base an adverse credibility determination on a contradiction that the alien could
reconcile if given a chance to do so”); Ming Shi Xue v. BIA, 439 F.3d 111, 121 (2d Cir. 2006)
(“[W]here the perceived incongruities in an asylum applicant’s testimony are not plainly
obvious, an IJ cannot rely on them to support an adverse credibility ruling without first
identifying the alleged inconsistencies for the applicant and giving the applicant an
opportunity to address them.”).
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questioned Mpesse about the inconsistencies at trial, he had been given an
adequate opportunity to respond to discrepancies that impacted the IJ’s
credibility determination. Id.Nkenglefac’s claim is distinguishable in two meaningful respects.
First, at no point during the hearing before the IJ was Nkenglefac provided
with the opportunity to explain any apparent inconsistencies or dispute the
accuracy of the records in question, or cross examine the individuals who
prepared the interview summaries, much less object to their introduction, or
offer views on weight to be given to the evidence. Inspection of the hearing
record confirms that Nkenglefac was not given the opportunity to explain
perceived inconsistencies in the government summaries of his prior
uncounseled interviews.5 Indeed, the voluminous testimonial record,
including extensive government cross-examination and IJ direct inquiry,
gives no indication that Nkenglefac had previously made any inconsistent
statements, yet the IJ, three months later, determined that “inconsistencies
and omissions . . . undermine critical parts of Respondent’s claim” to such
an extent that the court denied “Respondent’s application based on lack of
credibility.”
Second, in Mpesse, as well as all the other aforementioned cases, such
as Singh v. Garland, 850 F. App’x 920 (5th Cir. 2021) (unpublished) (per
curiam), the CBP and credible fear interviews at issue were submitted into
5
The fact that Nkenglefac was not given an opportunity to explain perceived
inconsistencies also distinguishes this case from another recent decision, Thraiyappah v.
Garland, No. 21-60092, 2022 WL 807405 (5th Cir. Mar. 16, 2022) (unpublished) (per
curiam). In that case we highlighted that “Thraiyappah . . . had an opportunity to clarify
or explain any perceived inconsistencies and omissions in his prior statements during
the merits hearing.” Id. at *4. Additionally, in cases cited in Thraiyappah, the records
confirm that the petitioners were given the opportunity to explain or clarify alleged
inconsistencies prior to credibility determinations.
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the hearing record.6 Conversely, as the unanimous BIA panel found,
“[Nkenglefac’s] interviews with asylum officers and broader patrol officers .
. . were not introduced into the record.”
As explained above, “an adverse credibility determination . . . ‘must
be supported by specific and cogent reasons derived from the record.’” Singh,
880 F.3d at 225 (emphasis added) (citation omitted); see also Mwembie v.
Gonzales, 443 F.3d 405, 410 (5th Cir. 2006) (explaining that the court is not
compelled to uphold credibility determinations that are “unsupported by the
record”). Because the IJ’s credibility determination is not “supported by the
record,” the BIA erred by affirming it.
B.
The BIA majority—affirming the IJ’s decision—also determined
that Nkenglefac’s argument regarding the absence of the CBP and credible
fear interviews from the record was “waived” because “the [trial] transcript
reflects that [Nkenglefac’s] former counsel never requested that these
records . . . be made a part of the record.” However, we fail to understand
why Nkenglefac’s counsel should have introduced these government
summaries into the record to anticipate and explain later-perceived
inconsistencies when they were never identified, referenced, or discussed.7
6
See United States v. Huntsberry, 956 F.3d 270, 285 (5th Cir. 2020) (“It is well-
settled that courts may judicially notice court records as evidence of judicial actions.”).
7
Nkenglefac’s brief on appeal to the BIA gave him his first opportunity to respond
to the perceived inconsistencies identified by the IJ:
There is no meaningful distinction between [Nkenglefac’s] two arrests, as
the respondent allegedly told a CBP officer, and ‘several arrests,’ as stated
in his declaration. His alleged failure to remember the name of the
organization which helped secure his release, an organization he had no direct
contact with, is irrelevant to his claim. The fact that he allegedly ‘did not mention
he was physically harmed’ during his arrest when he spoke to border patrol officers
could have been due to the fact that he was specifically asked if he had been
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It is also worth noting that there is no evidence—beyond the statement of the
BIA majority—that Nkenglefac’s counsel failed to preserve this issue on
appeal. The issue was discussed at length in Nkenglefac’s appeal brief to the
BIA and again in his brief to this court. Furthermore, this observation stands
in contravention to existing BIA law that “an adverse credibility
determination should not be based on inconsistencies that take an alien by
surprise.” Matter of Y-I-M-, 27 I. & N. Dec. 724, 726-29 (BIA 2019) (quote
at 726). Notably, the Government’s brief on appeal does not argue that
Nkenglefac has waived this argument.
V.
We GRANT the petition for review and REMAND this case to the
BIA for further proceedings consistent with this opinion.
arrested, not if he had been harmed during arrest or detention. Furthermore, the
respondent did, in fact, report to border patrol officers that he ‘had pain in [his]
left shoulder from being restrained from a soldier,’ which indicates that he did
report harm during that interview and did indicate that the harm was inflicted by a
Cameroonian soldier during an arrest or detention. The statement taken by border
patrol officers is a brief overview of his claim, not a detailed investigation. Since
the interview was not introduced into evidence, however, it is impossible to
question or review the questions and responses the respondent provided in such
an interview. This makes it impossible for the respondent to challenge the
Immigration Judge’s assessment of such an interview as well as impossible for this
Board to review and determine if the Immigration Judge committed an error.
Likewise, the respondent’s failure to disclose to asylum officers that his
father had been killed is due to the fact that questions posed specifically related to
harm he experienced personally, not harm to others.
13