Ernest Tekang v. Merrick Garland ( 2022 )

FILED
NOT FOR PUBLICATION
MAY 17 2022
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERNEST TEKANG TEKANG, No. 20-73000
Petitioner, Agency No. A203-710-049
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 9, 2022**
Portland, Oregon
Before: BERZON, TALLMAN, and CHRISTEN, Circuit Judges.
Petitioner Ernest Tekang Tekang, a native and citizen of Cameroon, seeks
review of the Board of Immigration Appeals’ (BIA) final order affirming the
Immigration Judge’s (IJ) denial of Tekang’s application for asylum, withholding of
*
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).
removal, and protection pursuant to the Convention Against Torture (CAT). The
BIA affirmed the IJ’s adverse credibility finding and denial of Tekang’s
application. We have jurisdiction to review Tekang’s petition for review pursuant
to 8 U.S.C. § 1252, and we deny the petition. Because the parties are familiar with
the facts, we do not recount them here.
Where, as here, the BIA cited Matter of Burbano, 20 I. & N. Dec. 872 (BIA
1994), “we review the IJ’s decision as if it were the BIA’s decision.” Alam v.
Garland, 11 F.4th 1133, 1135 (9th Cir. 2021) (en banc). The agency’s “factual
findings are ‘conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.’” Qui v. Barr, 944 F.3d 837, 842 (9th Cir. 2019)
(quoting 8 U.S.C. § 1252(b)(4)(B)), overruled on other grounds by Alam, 11 F.4th
at 1137.
1. Tekang argues that substantial evidence does not support the agency’s
adverse credibility finding because the agency’s stated reasons were “flawed and,
in their totality, did not support” the finding. When assessing an applicant’s
credibility, the IJ must consider the totality of the circumstances, Alam, 11 F.4th at
1135, must provide “a legitimate articulable basis to question the petitioner’s
credibility, and must offer a specific, cogent reason for any stated disbelief,” Gui v.
INS, 280 F.3d 1217, 1225 (9th Cir. 2002) (quoting Osorio v. INS, 99 F.3d 928, 931
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(9th Cir. 1996)). Likewise, we “must look to the totality of the circumstances[]
and all relevant factors” when we review an IJ’s adverse credibility finding. Alam,
11 F.4th at 1137 (alteration in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)).
We also “afford a ‘healthy measure of deference to agency credibility
determinations,’ mindful that ‘IJs are in the best position to assess demeanor and
other credibility cues’” that we cannot assess on review. Manes v. Sessions, 875
F.3d 1261, 1263 (9th Cir. 2017) (per curiam) (quoting Shrestha v. Holder, 590
F.3d 1034, 1041 (9th Cir. 2010)).
Here, the IJ concluded Tekang was not credible because his testimony was
generally implausible and lacked corroboration “with instances of evasive and
vague responses.” The IJ provided several specific, cogent reasons why he reached
this conclusion, and nothing in the record suggests the agency failed to consider
the totality of Tekang’s testimony and evidence, cf. Gonzalez-Caraveo v. Sessions,
882 F.3d 885, 895 (9th Cir. 2018) (“A general statement that the [agency]
considered all the evidence can suffice where nothing in the record indicates a
failure to consider all the evidence.”). For example, the IJ explained that Tekang
testified about “some points in an extremely detailed manner”—such as the fact he
remembered that police beat him for thirteen minutes in December 2018—yet his
testimony on other points was vague. Tekang could not offer details of the barber
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shop where he worked, including a description of its size, its layout, and the
material from which it was built, despite the barber shop being central to his story.
The IJ also concluded that parts of Tekang’s testimony were implausible,
especially those regarding Tekang’s ability to travel through the jungle for four
days only two months after he fractured his knee and his decision to reopen his
barbershop when warned not to. More specifically, Tekang testified that he
reopened the shop to support his family, but he also testified that he began saving
money in 2015 to travel to the United States and he was able to come up with
$10,000 within a matter of days when he fled to the United States. We conclude
that substantial evidence supports the agency’s adverse credibility finding.
2. To qualify for asylum or withholding of removal, Tekang bore the burden
to demonstrate past persecution and/or a well-founded fear of future persecution.
See 8 C.F.R. §§ 1208.13(b), 1208.16(b). In light of the agency’s adverse
credibility finding, Tekang’s non-testimonial evidence failed to rehabilitate his
credibility or independently establish his eligibility for asylum and withholding of
removal. Thus, substantial evidence supports the agency’s denial of Tekang’s
asylum and withholding of removal claims.
As for his CAT claim, Tekang bore the burden to prove it is “more likely
than not” that he would be tortured if removed to Cameroon, 8 C.F.R. §
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1208.16(c)(2), but he only points to his country conditions evidence as support for
his claim. Without the benefit of credible testimony, the country condition reports
alone do not demonstrate that it is more likely than not that Tekang will be tortured
if removed to Cameroon. Cf. Shrestha, 590 F.3d at 1048–49. Accordingly, we
conclude that substantial evidence supports the agency’s denial of Tekang’s claim
for CAT relief.
PETITION FOR REVIEW DENIED.
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