Tene Takounga v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 31 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Tresor Diraison Tene Takounga, No. 21-9
Petitioner, Agency No. A213-086-836
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 29, 2023**
San Francisco, California
Before: BOGGS,*** M. SMITH, and OWENS, Circuit Judges.
Tresor Diraison Tene Takounga petitions this court to review the Board of
Immigration Appeals’ (BIA) denial of his motion to reopen. We have jurisdiction
pursuant to 8 U.S.C. § 1252(a). The parties’ familiarity with the facts is assumed,
and they are recounted here only as necessary to provide context. The relevant
*
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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
standards of review are well-established. We deny the petition.
Petitioner’s previous asylum, withholding of removal, and Convention
Against Torture claims were denied based on the adverse credibility
determination of the Immigration Judge (IJ). Both the BIA and our court upheld
the IJ’s adverse credibility determination. Tene Tekounga v. Barr, 797 F. App’x
329, 329–30 (9th Cir. 2020). Petitioner also filed a motion to reconsider, which
was dismissed as untimely.
Petitioner then filed a motion to reopen based on changed country
conditions. To prevail on such a motion following an adverse credibility
determination, a movant “must either overcome the prior determination or show
that the new claim is independent of the evidence that was found to be not
credible.” Singh v. Garland, 46 F.4th 1117, 1122 (9th Cir. 2022) (quoting Matter
of F-S-N-, 28 I. & N. Dec. 1, 3 (B.I.A. 2020)). The BIA denied the motion
because Petitioner both (1) waived any argument challenging the IJ’s prior
adverse credibility determination, and (2) failed to show that the new claim was
independent of the evidence previously found not credible.
In his briefing before this court, Petitioner challenges neither of those bases
for denying the motion to reopen. Accordingly, we deem any such arguments
waived. See Fed. R. App. P. 28(a)(8)(A); Lopez-Vasquez v. Holder, 706 F.3d
1072, 1079–80 (9th Cir. 2013). We need not reach Petitioner’s other arguments,
because his failure to challenge these threshold issues is dispositive of his claim.
DENIED.
2 21-9