Fousseni v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 25 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Tadjoudine Fousseni; Hadidja No. 21-1420
Fousseni; Sadiatou Amidu,
Agency Nos. A215-668-556
Petitioners, A215-668-531
A215-668-530
v.
Merrick B. Garland, U.S. Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 21, 2023**
San Francisco, California
Before: VANDYKE and SANCHEZ, Circuit Judges, and MURPHY***,
District Judge.
Lead Petitioner Tadjoudine Fousseni petitioned for review of an order
from the Board of Immigration Appeals (BIA) dismissing his appeal of the
*
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 Stephen J. Murphy, III, United States District Judge
for the Eastern District of Michigan, sitting by designation.
immigration judge’s (IJ) denial of his application for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We
have jurisdiction under 8 U.S.C. § 1252.
1. We review for substantial evidence both the BIA’s dismissal and the
adverse credibility determination. See Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010) (citations omitted). Credibility determinations are owed “special
deference,” and we “will only exercise our power to grant a petition for review
when the evidence compels a contrary conclusion.” Kaur v. Gonzales, 418 F.3d
1061, 1064 (9th Cir. 2005) (cleaned up).
Substantial evidence supports the BIA’s determination that Fousseni
failed to provide credible testimony to establish his eligibility for asylum and
withholding of removal. In his application for asylum, Fousseni described three
incidents that led him and his family to seek asylum. The BIA found that
Fousseni offered inconsistent testimony on all three incidents. The record does
not compel a contrary conclusion.
First, Fousseni gave inconsistent testimony on when, where, and how he
was allegedly attacked in August 2012. Fousseni stated that he was not tied up
during the alleged attack. But a corroborating witness stated that Fousseni was
tied up. To explain the discrepancy, Fousseni stated that the witness had not
actually observed the incident but had merely heard about it from Fousseni.
And he offered no other explanation for the discrepancy.
Second, Fousseni testified that his father was murdered while riding a
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moped to the mosque. But his sworn declaration stated that his father was
murdered while walking to the mosque. Foussenni also testified that somebody
told him his father’s body was found in the bushes. But his declaration stated
that he was with the search party that found his father’s body. Compounding
the inconsistencies in his story, Fousseni testified that his father never made it to
the mosque the day that he was murdered, but the asylum application his wife
submitted stated that her father in-law was murdered while exiting the mosque.
When asked why her application differed from her husband’s testimony,
Fousseni’s wife testified that her application was correct. Fousseni’s only
explanation was that his wife was sick and unable “to keep a lot of things in her
head.”
Third, Fousseni’s asylum application provided that his daughter was
kidnapped and that his mother-in-law paid a $15,000 ransom before his
daughter was delivered at home after being tied up, beaten, and tortured. But
Fousseni testified that he had to travel to the forest to recover his daughter after
the ransom was paid. The only explanation that Fousseni offered for the
discrepancy was that his asylum application incorrectly recorded his statements.
But Fousseni then could not offer an explanation why he read and signed his
asylum application despite the untrue statements it contained. Moreover,
Fousseni’s wife testified that she received a ransom phone call immediately
after her daughter was kidnapped. But her written application provided that she
received a phone call the next day. There was also inconsistent testimony about
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whether Fousseni’s wife saw the kidnapping occur, or whether she was told
about it.
Together, the discrepancies identified by the IJ and the BIA support the
adverse credibility finding. The agency provided Fousseni with a reasonable
opportunity to explain the perceived inconsistencies and was not required to
accept his explanations. See Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021).
We hold that there is no “evidence that compels a contrary conclusion” to the
IJ’s and BIA’s adverse credibility determination. Id. (cleaned up).
2. In addition, the BIA found that Fousseni failed to meaningfully challenge
the IJ’s denial of his CAT claim and therefore waived the issue on appeal.
Because Fousseni does not challenge this finding in his brief, we find this issue
waived. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Fousseni’s petition fails. Accordingly, the derivative petitions of his wife
and daughter also fail. See Kumar v. Gonzales, 439 F.3d 520, 521, 525 (9th Cir.
2006) (denying petition for review as to derivative petitioners’ application
because the lead petitioner’s petition for review was denied.). The motion for a
stay of removal, Docket No. 3, is denied as moot. The temporary stay of
removal remains in effect until issuance of the mandate.
PETITION DENIED IN PART AND DISMISSED IN PART.
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