Tandong v. Garland ( 2022 )

Case: 21-60614 Document: 00516566957 Page: 1 Date Filed: 12/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
December 5, 2022
No. 21-60614 Lyle W. Cayce
Clerk
Colelius Tengen Tandong,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A206 513 846
Before Richman, Chief Judge, and Dennis and Ho, Circuit Judges.
Per Curiam:*
Colelius Tengen Tandong, a native and citizen of Cameroon, petitions
for review of the Board of Immigration Appeals’s (BIA) decision dismissing
his appeal from the order of the immigration judge (IJ) denying him asylum,
withholding of removal, and Convention Against Torture (CAT) relief. For
the following reasons, we DENY the petition for review.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
Case: 21-60614 Document: 00516566957 Page: 2 Date Filed: 12/05/2022
No. 21-60614
I.
Tandong, a native and citizen of Cameroon, was served with a notice
to appear charging him with removability for entering the United States
without valid documentation and without being admitted or paroled after
inspection. He admitted the allegations and conceded removability. In his
2014 I-589 application, Tandong stated that, in March of 2013, he had
participated in a Southern Cameroon National Council rally and was beaten
and detained by the police. The police placed him in a dark cell and doused
him with cold water; his detention lasted for over a month. In a 2016 sworn
declaration, Tandong added that, during his detention, he was “beaten with
sticks and belts every day like a thief for hour’s [sic] on-end. I was jolted with
electricity to my body and I felt like I was going to die.” In response to the
IJ’s questioning at his hearing, Tandong testified that he had been shocked
with electricity “[a]bout four times.”
The IJ found that Tandong was not credible. Among the
inconsistencies cited by the IJ in support of the credibility determination were
that Tandong did not mention daily beatings or electrical shocks in his
application, and Tandong’s declaration implied that he was shocked with
regularity over the course of his detention whereas he testified that he was
only shocked on four occasions. The IJ also based the adverse credibility
finding on Tandong’s demeanor, noting that he “exaggerated his
testimony,” “was overly dramatic,” changed his demeanor and the pace of
his speech depending on the questioner, and feigned tears. The BIA cited
Tandong’s demeanor and the foregoing inconsistencies as bases for
upholding the IJ’s credibility determination.
II.
On appeal, we review the BIA’s factual findings—including the
adverse credibility determination—for substantial evidence. See Avelar-
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Oliva v. Barr, 954 F.3d 757, 763 (5th Cir. 2020). On substantial-evidence
review, factual findings are not reversed unless the petitioner demonstrates
“that the evidence is so compelling that no reasonable factfinder could reach
a contrary conclusion.” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th
Cir. 2012) (internal citations omitted). The trier of fact, considering the
totality of the circumstances and all relevant factors, may base a credibility
determination on the following:
the demeanor, candor, or responsiveness of the applicant or
witness, the inherent plausibility of the applicant’s or witness’s
account, the consistency between the applicant’s or witness’s
written and oral statements (whenever made and whether or
not under oath, and considering the circumstances under
which the statements were made), the internal consistency of
each such statement, the consistency of such statements with
other evidence of record . . . and any inaccuracies or falsehoods
in such statements, without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the
applicant’s claim, or any other relevant factor.
8 U.S.C. § 1158(b)(1)(B)(iii).
III.
Contrary to Tandong’s assertion that demeanor alone cannot be the
basis for an adverse credibility determination, the BIA permissibly cited
Tandong’s demeanor as a basis for upholding the adverse credibility
determination. See 8 U.S.C. § 1158(b)(1)(B)(iii); Wang v. Holder, 569 F.3d
531, 539-40 (5th Cir. 2009). Although Tandong generally asserts that the
inconsistencies cited by the BIA are minor, an adverse credibility
determination may be based on “any inconsistency or omission . . . as long as
the totality of the circumstances establishes that an asylum applicant is not
credible.” Wang, 569 F.3d at 538 (internal quotation marks and citation
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omitted). Tandong fails to show that the adverse credibility determination is
unsupported by substantial evidence. See id. at 538-40.
In light of the adverse credibility finding, Tandong is foreclosed from
receiving asylum or withholding of removal. See Arulnanthy v. Garland, 17
F.4th 586, 596-97 (5th Cir. 2021); Dayo v. Holder, 687 F.3d 653, 658-59 (5th
Cir. 2012). Tandong’s challenge to the denial of CAT relief is based entirely
upon his challenge to the adverse credibility finding; thus, he does not show
that the BIA erred in denying CAT relief. He does not argue that any
nontestimonial record evidence could independently establish his
entitlement to CAT relief, and he has therefore waived any such argument.
Arulnanthy, 17 F.4th at 597-98; Ghotra v. Whitaker, 912 F.3d 284, 290 & n.2
(5th Cir. 2019).
IV.
For the foregoing reasons, the petition for review is DENIED.
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