Ning-Kum v. Garland ( 2022 )

Case: 21-60520 Document: 00516381623 Page: 1 Date Filed: 07/05/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 5, 2022
No. 21-60520 Lyle W. Cayce
Summary Calendar Clerk
Faithful Nchu-U Ning-Kum,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A213 475 817
Before Wiener, Dennis, and Haynes, Circuit Judges.
Per Curiam:*
Faithful Nchu-U Ning-Kum, a native and citizen of Cameroon,
petitions for review of a decision of the Board of Immigration Appeals (BIA)
dismissing her appeal from an order of the immigration judge (IJ) concluding
that she was ineligible for asylum, withholding of removal, and relief under
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
Case: 21-60520 Document: 00516381623 Page: 2 Date Filed: 07/05/2022
No. 21-60520
the Convention Against Torture (CAT). We review the BIA’s decision and
will consider the IJ’s decision only to the extent it influenced the BIA. Singh
v. Sessions, 880 F.3d 220, 224 (5th Cir. 2018).
The IJ denied Ning-Kum’s claims for relief based on an adverse
credibility finding, and the BIA determined that the IJ had not clearly erred
in her credibility finding. Because she has not adequately briefed a challenge
to the agency’s adverse credibility determination, Ning-Kum has waived the
issue. See Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Ning-Kum’s contention that the IJ failed to develop the record lacks
merit. Although we have recognized that the IJ has a duty to develop the
record, particularly where an alien appears pro se, see Arteaga-Ramirez
v. Barr, 954 F.3d 812, 813 (5th Cir. 2020), the IJ fulfilled her duty by asking
open-ended questions of Ning-Kum regarding the threats and harms she had
experienced in Cameroon, as well as her fear of harm in the future, and giving
her the opportunity to testify on these topics. See Lopez-Rodriguez v. INS, 20
F.3d 467, No. 93-5242, 1994 WL 122108, *6 (5th Cir. Mar. 24, 1994)
(unpublished). 1 The IJ was not Nung-Kim’s advocate, see Arteaga-Ramirez,
954 F.3d at 813, and she did not have “a duty to develop the facts necessary
to prove [Nung-Kim’s] case,” Lopez-Rodriguez, 1994 WL 122108, *6.
Turning to the BIA, Ning-Kum argues that it erred by failing to
consider the additional evidence she submitted in conjunction with her
appeal; she asserts that the BIA should have treated her appeal like a motion
to remand. The BIA does not consider new evidence on appeal. Matter of
Santos, 28 I. & N. Dec. 552, 561 n.4 (BIA 2022). Further, because Ning-Kum
has not shown that the proffered new evidence was previously unavailable,
1
Although unpublished, the opinion in Lopez-Rodriguez is precedential because it
was issued before January 1, 1996. See 5th Cir. R. 47.5.3.
2
Case: 21-60520 Document: 00516381623 Page: 3 Date Filed: 07/05/2022
No. 21-60520
she has not shown that the BIA erred by not ordering a remand. See Matter
of Coelho, 20 I. & N. Dec. 464, 472 (BIA 1992); Milat v. Holder, 755 F.3d 354,
365 (5th Cir. 2014).
Here, the agency’s unchallenged adverse credibility determination is
dispositive of Ning-Kum’s claims for asylum and withholding of removal
because she cannot establish a subjective fear of future persecution. See
Arulnanthy v. Garland, 17 F.4th 586, 596-97 (5th Cir. 2021). Accordingly, we
need not address Ning-Kum’s contentions that the BIA erred by failing to
consider whether she qualified for asylum based on a pattern or practice
theory of persecution and that the BIA erred by failing to consider all
evidence of a well-founded fear of persecution. See INS v. Bagamasbad, 429
U.S. 24, 25 (1976). Finally, because Ning-Kum raises no challenge to the
denial of her CAT claim, she has abandoned it. See Soadjede, 324 F.3d at 833.
The petition for review is DENIED.
3