Kelvin Michael v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 20 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVLIN VICTOR MICHAEL, No. 21-70103
Petitioner, Agency No. A208-615-661
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of
the Board of Immigration Appeals
Submitted May 16, 2022**
Pasadena, California
Before: LEE and BRESS, Circuit Judges, and FITZWATER,*** District Judge.
Kelvin Victor Michael (“Michael”), a native and citizen of Nigeria, petitions
for review of the Board of Immigration Appeals’ (“BIA’s”) order dismissing his
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sidney A. Fitzwater, United States District Judge for the
Northern District of Texas, sitting by designation.
appeal from the Immigration Judge’s (“IJ’s”) decision denying his application for
asylum, withholding of removal, and relief under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for
review.
We review questions of law de novo, Retuta v. Holder, 591 F.3d 1181, 1184
(9th Cir. 2010), and review the agency’s factual findings, including adverse credibility
determinations, for substantial evidence, Mukulumbutu v. Barr, 977 F.3d 924, 925
(9th Cir. 2020). Under the substantial evidence standard, we must uphold the
agency’s determination unless any reasonable trier of fact “‘would be compelled to
conclude to the contrary’ based on the evidence in the record.” Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (quoting Zhi v. Holder, 751
F.3d 1088, 1091 (9th Cir. 2014)). In assessing an adverse credibility finding, this
court must look to the “totality of the circumstances[] and all relevant factors.” Alam
v. Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc) (alteration in original)
(quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
1. The agency’s adverse credibility finding relied on three factors: (1)
Michael’s delay in submitting his fear of discrimination based on his sexual
orientation; (2) Michael’s internal inconsistency in his testimony and inconsistency
between previous interviews; and (3) Michael’s responsiveness and candor. It also
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noted that his corroborating evidence did not rehabilitate his application. Under the
totality of the circumstances, substantial evidence supports the agency’s adverse
credibility determination. Iman v. Barr, 972 F.3d 1058, 1064-65 (9th Cir. 2020).
The agency did not err in relying on Michael’s delay in submitting his fear of
discrimination based on his sexual orientation. Li v. Ashcroft, 378 F.3d 959, 963 (9th
Cir. 2004) (holding that discrepancy between petitioner’s initial statements—that he
came to United States for financial reasons and was not mistreated by foreign
government—and later testimony asserting fear of persecution provided a valid basis
for the IJ’s adverse credibility determination). Nor did the agency err in rejecting
Michael’s explanation for his failure to disclose his fear of discrimination based on
his sexual orientation.1 The agency reasonably rejected his explanation because it was
rehearsed and rote. See Ling Huang v. Holder, 744 F.3d 1149, 1155 (9th Cir. 2014);
Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011) (“[T]he record does not compel
the finding that the [agency’s] unwillingness to believe this explanation, in light of the
importance of the omitted incidents to his asylum claim, was erroneous.”).
1
Mousa v. Mukasey, 530 F.3d 1025 (9th Cir. 2008), is inapposite. There,
the petitioner had a compelling explanation for her failure to disclose her fear of
persecution. See id. at 1028-29. Moreover, while Michael omitted any reference to
his sexual-orientation claim in his asylum application, Mousa did mention a general
fear of sexual violence in her asylum application. Id. at 1028.
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The agency also did not err in relying on Michael’s multiple, material
inconsistent statements. See Zamanov, 649 F.3d at 973 (“[I]nconsistencies regarding
events that form the basis of the asylum claim are sufficient to support an adverse
credibility determination.”); see also Rodriguez-Ramirez v. Garland, 11 F.4th 1091,
1093 (9th Cir. 2021) (per curiam) (“[D]espite [petitioner’s] testimony in October 2017
that this threat occurred in February 2016, the report he provided from the prosecutor
twice stated, on different pages, that the threats occurred in January 2016, and the IJ
found that [petitioner] did not have a convincing explanation for the discrepancy.”);
Li, 378 F.3d at 962.
Nor did the agency err in relying on Michael’s demeanor to find him not
credible. Singh-Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999) (stating that this
court gives “special deference” to a credibility determination that is based on
demeanor); Shrestha v. Holder, 590 F.3d 1034, 1045 (9th Cir. 2010) (“This instance
of blatant and unexplained unresponsiveness supports the IJ’s adverse credibility
determination.”).
Finally, the agency did not err in concluding that Michael’s corroborating
evidence did not rehabilitate his application. See Garcia v. Holder, 749 F.3d 785, 791
(9th Cir. 2014) (“These documents do not reveal any independent knowledge of
[petitioner’s] alleged abuse.”).
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Absent credible supporting testimony, substantial evidence supports the
agency’s denial of asylum and withholding of removal. See Farah v. Ashcroft, 348
F.3d 1153, 1156 (9th Cir. 2003).
2. Michael has waived his challenge to the denial of his CAT relief by not
addressing it “specifically and distinctly” in his opening brief. Christian Legal Soc’y
Chapter of Univ. of Cal. v. Wu, 626 F.3d 483, 487 (9th Cir. 2010) (quoting Miller v.
Fairchild Indust., Inc., 797 F.3d 727, 738 (9th Cir. 1986)). Even if he did not waive
this challenge, the record does not compel the conclusion that Michael will personally
face torture if he returns to Nigeria, i.e., it does not show a particularized risk of
torture. Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021).
PETITION DENIED.
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