Chabaja v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD NKENGAFAC CHABAJA, No. 21-489
Agency No.
Petitioner, A213-190-491
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 13, 2023**
San Francisco, California
Before: S.R. THOMAS and KOH, Circuit Judges, and RAKOFF, District
Judge.***
Gerald Nkengafac Chabaja (“Chabaja”), a native and citizen of
Cameroon, petitions for review of an order of the Board of Immigration
Appeals (“BIA”) affirming the decision of an Immigration Judge (“IJ”) denying
*
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 Jed S. Rakoff, United States District Judge for the
Southern District of New York, sitting by designation.
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his applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). As the parties are familiar with the facts
of this case, we do not recount them here. We have jurisdiction under 8
U.S.C. § 1252. We review the denial of asylum, withholding of removal, and
CAT relief, as well as adverse credibility determinations, for substantial
evidence. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019);
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We dismiss the
petition in part, deny in part, and grant and remand in part for proceedings
consistent with this disposition.
1. Limiting our review to the grounds relied upon by the BIA, Lai v.
Holder, 773 F.3d 966, 970 (9th Cir. 2014), substantial evidence supports the
agency’s adverse credibility determination based on Chabaja’s inconsistencies
and demeanor, see Shrestha, 590 F.3d at 1044 (explaining that in making an
adverse credibility determination, the agency may consider an applicant’s
inconsistency and demeanor). Substantial evidence supports the adverse
credibility determination based on the inconsistency between Chabaja’s
testimony and his border interview. Before the IJ, Chabaja testified that the
military arrested him after discovering pictures of dead soldiers on his phone.
However, in his border interview, Chabaja stated that the picture that caused his
arrest was of “a flag that represented the English-speaking Cameroons.” This
inconsistency was not trivial, as it related to the alleged persecution underlying
his claim for relief. See id. at 1046–47 (“Although inconsistencies no longer
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need to go to the heart of the petitioner’s claim, when an inconsistency is at the
heart of the claim it doubtless is of great weight.”). Substantial evidence also
supports the adverse credibility determination based on the inconsistency
between Chabaja’s testimony and his supporting affidavits about whether he
was attacked by separatists in Cameroon. Although Chabaja was afforded
opportunities to explain both inconsistencies, “the IJ and [BIA] were not
compelled to accept [his] explanation[s] for the discrepanc[ies].” See Li v.
Garland, 13 F.4th 954, 961 (9th Cir. 2021).
Finally, the BIA cited the IJ’s demeanor finding that Chabaja testified in
a “rote manner” and provided “nervous and non-responsive answers” when
confronted during cross-examination. These “specific, first-hand observations”
are “precisely the kind of credibility cues that are the special province of the
factfinder.” Manes v. Sessions, 875 F.3d 1261, 1263 (9th Cir. 2017) (per
curiam); see also id. (upholding the IJ’s demeanor finding where the IJ
observed that petitioner was “visibly nervous” and spoke “notably faster” in
response to questioning). Because “[t]he need for deference is particularly
strong in the context of demeanor assessments,” Ling Huang v. Holder, 744
F.3d 1149, 1153 (9th Cir. 2014), “[w]e give ‘special deference’ to a credibility
determination that is based on demeanor,” Singh-Kaur v. INS, 183 F.3d 1147,
1151 (9th Cir. 1999) (quoting Paredes-Urrestarazu v. INS, 36 F.3d 801, 818–19
(9th Cir. 1994)).
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Absent credible testimony, the BIA did not err in concluding that Chabaja
failed to meet his burden of establishing eligibility for asylum or withholding of
removal, and the record does not compel a contrary conclusion. See Rodriguez-
Ramirez v. Garland, 11 F.4th 1091, 1094 (9th Cir. 2021) (per curiam).
Accordingly, we deny the petition for review as to the denials of asylum and
withholding of removal.1
2. The BIA erred when denying Chabaja’s request for CAT relief. “The
failure of the IJ and BIA to consider evidence of country conditions constitutes
reversible error.” Aguilar-Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010).
This is because country conditions alone could satisfy a CAT applicant’s
burden. Id. Here, neither the IJ nor the BIA discussed the country conditions in
the record when evaluating Chabaja’s CAT claim. “[W]here there is any
indication that the BIA did not consider all of the evidence before it, a catchall
phrase does not suffice, and the decision cannot stand.” Flores Molina v.
Garland, 37 F.4th 626, 639 n.7 (9th Cir. 2022) (quoting Cole v. Holder, 659
F.3d 762, 771–72 (9th Cir. 2011)). Because we cannot assume that the agency
considered evidence it did not discuss, we grant the petition for review in part
1
In denying asylum, the BIA did not rely on the IJ’s alternative determinations
on the cognizability of Chabaja’s proposed particular social group and the
application of the third country transit bar. In light of our disposition, we need
not address those issues. See Regalado-Escobar v. Holder, 717 F.3d 724, 729
(9th Cir. 2013) (“In reviewing the decision of the BIA, we consider only the
grounds relied upon by that agency.” (quoting Andia v. Ashcroft, 359 F.3d 1181,
1184 (9th Cir. 2004))).
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and remand for the BIA to reconsider Chabaja’s claim for CAT relief in light of
the entire record. See Aguilar-Ramos, 594 F.3d at 705 (“Because the BIA failed
to consider the Country Report at all, the proper course of action is to remand
with instructions that the BIA reconsider [the petitioner’s] CAT claim in light of
the Country Report.” (citing the ordinary remand rule under INS v. Ventura, 537
U.S. 12, 16 (2002) (per curiam))).
3. Chabaja requests remand to apply for post-conclusion voluntary
departure. Although Chabaja failed to exhaust this claim before the agency, the
BIA did not have the benefit of our decision in Posos-Sanchez v. Garland, 3
F.4th 1176, 1185 (9th Cir. 2021), holding that a statutorily deficient notice to
appear does not trigger the voluntary departure stop-time provision.
Accordingly, we grant the petition for review in part and remand for the BIA to
consider Chabaja’s post-conclusion voluntary departure claim, if necessary, in
light of Posos-Sanchez.2 See Vasquez-Rodriguez v. Garland, 7 F.4th 888, 896
(9th Cir. 2021) (“[W]here the agency’s position ‘appears already set’ and
recourse to administrative remedies is ‘very likely’ futile, exhaustion is not
required.” (quoting Szonyi v. Barr, 942 F.3d 874, 891 (9th Cir. 2019))).
PETITION DISMISSED IN PART, DENIED IN PART, AND GRANTED
IN PART; REMANDED.3
2
Because Chabaja failed to exhaust the argument that defects in the notice to
appear required termination of his proceedings, we lack jurisdiction to consider
it and thus dismiss this portion of the petition. See Barron v. Ashcroft, 358 F.3d
674, 677–78 (9th Cir. 2004).
3
The parties shall bear their own costs on appeal.
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