Gustave Yen Nyemb v. Eric Holder, Jr. , 404 F. App'x 926 ( 2010 )

Case: 10-60010 Document: 00511325411 Page: 1 Date Filed: 12/17/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2010
No. 10-60010
Summary Calendar Lyle W. Cayce
Clerk
GUSTAVE LE GRAND FILS YEN NYEMB,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 824 200
Before REAVLEY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Gustave Le Grand Fils Yen Nyemb, a native and citizen of Cameroon, has
petitioned for review of the order of the Board of Immigration Appeals (BIA)
dismissing his appeal from the denial of his application for asylum.1 Nyemb
contends that the BIA erred in affirming the Immigration Judge’s (IJ) adverse
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
1
Nyemb raises no issue with respect to the BIA’s dismissal of his appeal from the
denial of his requests for withholding of removal and for relief under the Convention Against
Torture. Therefore, any issue that might have been raised with respect to those
determinations has been waived. See Singh v. Holder, 568 F.3d 525, 529 (5th Cir. 2009).
Case: 10-60010 Document: 00511325411 Page: 2 Date Filed: 12/17/2010
No. 10-60010
credibility finding and in affirming the IJ’s determination that Nyemb had failed
to provide reasonably available corroborating documentation.
This court generally reviews only the BIA’s decision except to the extent
that the IJ’s decision influences the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th
Cir. 1997). The substantial evidence standard test is applied in reviewing
factual findings in immigration proceedings. Chen v. Gonzales, 470 F.3d 1131,
1134 (5th Cir. 2006). Under that standard, “The applicant has the burden of
showing that the evidence is so compelling that no reasonable factfinder could
reach a contrary conclusion.” Id.Nyemb filed his application after the effective date of the REAL ID Act of
2005, which amended the standards for assessing credibility.2 See Wang v.
Holder, 569 F.3d 531, 537 (5th Cir. 2009). Under the REAL Act, “[a]n applicant’s
testimony, alone, may be sufficient to sustain the burden of proving eligibility
for asylum, ‘but only if the applicant satisfies the trier of fact that [his]
testimony is credible, is persuasive, and refers to specific facts sufficient to
demonstrate that the applicant is a refugee.’” Id. (quoting 8 U.S.C.
§ 1158(b)(1)(B)(ii)). The IJ may consider the “totality of the circumstances” and
“all relevant factors” in making a credibility determination. § 1158(b)(1)(B)(iii).
An applicant’s credibility is not presumed. Id.
Thus, “‘an IJ may rely on any inconsistency or omission in making an
adverse credibility determination as long as the totality of the circumstances
establishes that an asylum applicant is not credible.’” Wang, 569 F.3d at 538-39.
This court will defer “‘to an IJ’s credibility determination unless, from the
totality of the circumstances, it is plain that no reasonable fact-finder could
make such an adverse credibility ruling.’” Id. In making a credibility finding,
the IJ is not required to consider only inconsistencies, inaccuracies, and
2
Two cases relied upon by Nyemb, Koulibaly v. Mukasey, 541 F.3d 613 (6th Cir. 2008),
and Singh v. Gonzales, 403 F.3d 1081, 1089-90 (9th Cir. 2005), were not governed by the REAL
ID Act. See Koulibaly, 541 F.3d at 620 n.2.
2
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No. 10-60010
falsehoods that go to the heart of an applicant’s claim, as details at the periphery
of the applicant’s story “‘may expose a liar.’” Id. at 537 & 539 (citation omitted).
The IJ’s adverse credibility finding was based on discrepancies between
Nyemb’s testimony and statements made to the asylum officer and in his written
declaration with respect to (1) injuries suffered during a 2003 detention, (2) the
number of times Nyemb was detained in 2003, and (3) facts related to Nyemb’s
release from detention in 2003. Nyemb has not shown that, under the totality
of the circumstances, no reasonable factfinder could have made an adverse
credibility ruling based on these discrepancies. See Wang, 569 F.3d at 538-39.
The documents submitted by Nyemb in support of his asylum application
did not sufficiently corroborate his testimony.3 See id. at 537. The BIA did not
err in concluding that the IJ had not erred in determining that additional
corroborative evidence, establishing a nexus between the 2003 detention and a
fire at Nyemb’s residence and his political activities, was reasonably available
and should have been produced. See § 1158(b)(1)(B)(ii). Because the BIA’s
decision dismissing Nyemb’s appeal from the IJ’s decision denying Nyemb’s
asylum application is supported by substantial evidence, see Chen, 470 F.3d at
1134, the petition is DENIED.
3
In reaching this conclusion, we note that many of the documents submitted by Nyemb
were not translated. See 8 C.F.R. § 1003.33 (foreign language documents must be translated
into English and must be accompanied by translator’s certificate); Li v. Holder, 342 F. App’x
55, 57 (5th Cir. 2009) (holding that the IJ was justified in excluding foreign language
documents that were not translated).
3