Ndi Kingsley Ndi v. U.S. Attorney General

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
MAY 02, 2007
No. 06-14858 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency No. A97-669-306
NDI KINGSLEY NDI,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(May 2, 2007)
Before DUBINA, CARNES and KRAVITCH, Circuit Judges.
PER CURIAM:
Ndi Kingsley Ndi, a native and citizen of Cameroon, seeks review of the
Board of Immigration Appeals (“BIA’s”) decision affirming without opinion the
immigration judge’s (“IJ’s”) order of removable and denial of asylum, withholding
of removal, and relief under the Convention Against Torture and Other Cruel,
Inhuman, or Degrading Treatment or Punishment (“CAT”), 8 U.S.C. §§ 1158,
1231; 8 C.F.R. § 208.16.
Ndi attempted to enter the United States without valid entry documents and
was served with a notice to appear charging him with removability under INA
§ 212(a)(7)(A)(i)(I). Ndi requested relief from removal in the forms of asylum,
withholding of removal, and CAT relief. After a hearing, the IJ concluded that
Ndi’s allegations were not credible and denied relief. The BIA affirmed without
opinion. Ndi now petitions this court for review.
When the BIA does not render its own opinion, but instead adopts the IJ’s
opinion, we review the IJ’s decision. D-Muhumed v. U.S. Att’y Gen., 388 F.3d
814, 818 (11th Cir. 2004). Legal determinations are reviewed de novo. Id. at 817.
Factual determinations are reviewed under the substantial evidence test, and we
“must affirm the [] decision if it is ‘supported by reasonable, substantial, and
probative evidence on the record considered as a whole.’” Id. at 817-18. “To
reverse the IJ’s fact findings, we must find that the record not only supports
reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th
Cir. 2003). We also review credibility determinations under the substantial
evidence test. Forgue v. U.S. Attorney Gen., 401 F.3d 1282, 1286 (11th Cir.
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2005).
On appeal, Ndi argues that the IJ’s adverse credibility finding was not
supported by cogent reasons, and that the IJ failed to give the testimony at the
hearing and his supporting evidence sufficient weight. He contends that the
inconsistencies and omissions do not go to the heart of his claim, and thus would
not form the basis of an adverse credibility determination.
To establish eligibility for asylum, the petitioner has the burden of proving
that he is a “refugee,” which is defined as:
any person who is outside any country of such person’s nationality or,
in the case of a person having no nationality, is outside any country in
which such person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that country because of persecution or a
well-founded fear of persecution on account of . . . membership in a
particular social group, or political opinion.
8 U.S.C. §§ 1158(b)(1), 1101(a)(42)(A); see also Forgue, 401 F.3d at 1286. The
testimony of an applicant, if found to be credible, is alone sufficient to establish
eligibility for asylum. Yang v. U.S. Att’y Gen., 418 F.3d 1198, 1201 (11th Cir.
2005). Indications of reliable testimony include consistency on direct examination,
consistency with the written application, and the absence of embellishment as the
applicant repeatedly recounts his story. Ruiz v. U.S. Att’y Gen., 440 F.3d 1247,
1255 (11th Cir. 2006); Dalide v. U.S. Att’y Gen., 387 F.3d 1335, 1343 (11th Cir.
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2004). Credible testimony may be sufficient to sustain an applicant’s burden of
proving eligibility for asylum, but “[t]he weaker an applicant’s testimony,
however, the greater the need for corroborative evidence.” Yang, 418 F.3d at
1201. Conversely, “an adverse credibility determination alone may be sufficient to
support the denial of an asylum application.” Forgue, 401 F.3d at 1287. However,
“an adverse credibility determination does not alleviate the IJ’s duty to consider
other evidence produced by an asylum applicant,” and the IJ must provide
“specific, cogent reasons” for her credibility finding. Forgue, 401 F.3d at 1287.
Nevertheless, when the IJ enumerates an applicant’s inconsistencies and is
supported by the record, “we will not substitute our judgment for that of the IJ with
respect to its credibility findings.” D-Muhumed, 388 F.3d at 819.
This court has not explained whether adverse credibility findings must go to
the heart of the claim rather than being based on minor discrepancies,
inconsistencies, or admissions.1 However, we need not decide this issue here
because the inconsistencies were relevant and material to whether Ndi was in fact
persecuted. The IJ found that the record contained “substantial and material
evidentiary gaps” which reflected adversely on Ndi’s credibility, that Ndi
1
The REAL ID Act replaces this standard with a totality of the circumstances test, but
this new provision does not apply to cases like Ndi’s that were filed before May 11, 2005, the
day the REAL ID Act was enacted. REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231,
§§ 101(a)(3)(B)(iii), (d)(4)(B), (h)(2); 8 U.S.C. §§ 1158(b)(1)(B)(iii), 1229a(c)(4)(B).
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presented false testimony, and “exaggerated and embellished” his claim and the
underlying facts. Among the material inconsistencies cited by the IJ were the
conflicting testimony and documentary evidence with regard to when Ndi joined
the Southern Cameroon Leadership Council (“SCNC”), whether he had ever been
arrested - a question that Ndi answered 3 different ways in the airport interview,
asylum application, and during direct testimony- and Ndi never mentioned to the
immigration inspector that he was beaten. Also, the IJ was not able to authenticate
Ndi’s documentary evidence, such as his alleged SCNC card and supporting
affidavits, and the IJ indicated more than once that supporting documentary
evidence contained indicia of fraud.
Because of all of the inconsistencies noted by the IJ, the IJ did not err in
finding that Ndi was not credible. See Dalide, 387 F.3d at 1343. Moreover, the IJ
specifically enumerated the inconsistencies and considered all of the evidence, and
there was no reliable corroborating documentation available. We have previously
found that substantial evidence supports an adverse credibility finding where the
asylum seeker adds new facts or incidents of abuse to his story at the hearing. See
Forgue, 401 F.3d at 1287.
Ndi also argues that the IJ relied too heavily on statements he made to the
immigration officer at the airport and the asylum officer during the credible fear
interview. Regardless of the weight to be given such interviews, in this case it is
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clear that the IJ based her decision on the record as a whole and not just the arrival
and credible fear interviews. Because the IJ weighed the whole record,
enumerated numerous material inconsistencies and irregularities, and found that
the supporting evidence contained indicia of possible fraud, the IJ did not err in
making the adverse credibility determination.
For the foregoing reasons, we DENY Ndi’s petition for review.
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