Fiengoh v. Garland

Case: 21-60281 Document: 00516635197 Page: 1 Date Filed: 02/03/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
February 3, 2023
No. 21-60281
Lyle W. Cayce
Clerk
Lodrick Tsamoh Fiengoh,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A213 327 857
Before Elrod, Haynes, and Willett, Circuit Judges.
Per Curiam:*
Lodrick Fiengoh (“Fiengoh”) petitions for review of the Board of
Immigration Appeals’s (“BIA”) final order upholding the Immigration
Judge’s (“IJ”) denial of his application for asylum, withholding of removal,
and Convention Against Torture (“CAT”) relief. For the following reasons,
we DENY the petition for review.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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I. Background
Fiengoh, a native and citizen of Cameroon, alleges that he faces
political persecution due to his membership and activities in the Cameroon
Teachers Trade Union (“CATTU”) and the Southern Cameroons National
Council (“SCNC”).1 Specifically, Fiengoh contends that he was repeatedly
detained, arrested, and severely beaten following his participation in
CATTU and SCNC protests in 2016 and 2017. Fiengoh alleges that after
these arrests, he was apprehended by the military when it raided an SCNC
meeting he was attending. He escaped custody, but he subsequently learned
from the quarter head of his village that there was an outstanding warrant for
his arrest. Shortly thereafter, the military came to his home and beat his
father and brother. When Fiengoh’s family refused to disclose his location,
military personnel shot his brother and raped his sister in front of his father.
Fiengoh fled Cameroon, and on November 4, 2019, he presented
himself at a port of entry in Laredo, Texas. After conceding removability, he
sought relief in the form of asylum, withholding of removal, and protection
under CAT. On November 14, 2019, an asylum officer conducted a
telephonic credible fear interview (“CFI”) of Fiengoh. At the start of the
interview, the officer explicitly asked Fiengoh to identify his “best language
of understanding,” and he replied, “English.” Accordingly, the interview
was conducted in English without an interpreter. At the end of the interview,
1
Fiengoh contends that he is an Anglophone (an English speaker), which is a
minority group in Cameroon—Francophones (French speakers) are the majority. See
Mbeng v. Gonzales, 174 F. App’x 188, 191 n.6 (5th Cir. 2006) (per curiam). The CATTU
is a trade union comprised of Anglophones serving as teachers in Cameroon. The SCNC
is a political organization that advocates for the Anglophone Southern Cameroons’
independence from the largely Francophone Cameroon.
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Fiengoh confirmed that he understood all of the officer’s questions and that
the summary of the interview was correct.
Following a merits hearing, an IJ issued a written decision denying
Fiengoh’s requests for relief. The IJ cited, among other issues, purported
inconsistencies between Fiengoh’s statements and other written statements
in the record. The IJ further found that Fiengoh’s corroborating evidence
and affidavits failed to rehabilitate his credibility because they lacked indicia
of reliability.
On appeal, the BIA affirmed. First, it found no “clear error” in the
IJ’s adverse credibility findings based on three purported discrepancies:
(1) Fiengoh asserted in his testimony and his CFI that he learned about the
arrest warrant from the village quarter head, but the quarter head’s affidavit
indicated that he told Fiengoh’s father about the arrest warrant; (2) Fiengoh
stated in his asylum application and his CFI that he was just an SCNC
“supporter,” but the SCNC Secretary General’s affidavit stated that
Fiengoh was a “coordinator”; and (3) Fiengoh failed to mention in his
asylum application and CFI that the military beat his father in the same
incident where his sister was raped and his brother was shot.2
The BIA further upheld the IJ’s finding that Fiengoh’s explanations
and other evidence failed to rehabilitate his discredited testimony. The BIA
rejected Fiengoh’s argument that some of these inconsistencies could be
attributed to language barriers.3 It also concluded that Fiengoh’s
“voluminous” corroborating evidence was largely unreliable or “cast further
2
The BIA declined to “consider . . . some of the other discrepancies or
implausibilities noted by the [IJ],” since the three identified discrepancies “fully
support[ed] an adverse credibility determination.”
3
Fiengoh asserts that his “best language” is Pidgin English, which markedly differs
from the English used in the border interview, CFI, and IJ proceedings.
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doubt on the veracity of [his] testimony.” The BIA pointed to the “identical
linguistic idiosyncrasies” in Fiengoh’s supporting affidavits, the fact that his
birth certificate—needed to verify employment—was issued in 2017 and did
not indicate the date of the original document, and indicia that the arrest
warrant was forged. Fiengoh timely petitioned for review.
II. Jurisdiction & Standard of Review
We generally only have authority to review the BIA’s decision. Wang
v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). However, where, as here, “the
BIA determined the IJ’s adverse credibility finding was not clearly
erroneous,” we also have “authority to review those portions of the IJ’s
decision that impacted the BIA.” Nkenglefac v. Garland, 34 F.4th 422, 427
(5th Cir. 2022).
We review factual findings, such as credibility determinations, under
the substantial evidence standard, which requires the petitioner to show
“that the evidence was so compelling that no reasonable factfinder could
conclude against it.” Wang, 569 F.3d at 537. Under this deferential standard
of review, “we will affirm [credibility determinations] even if we may have
reached a different conclusion” where the record does not compel a different
result. Singh v. Garland, 20 F.4th 1049, 1054 (5th Cir. 2021) (quotation
omitted).
III. Discussion
Fiengoh contends that the IJ’s adverse credibility finding, which was
fatal to his application for relief from removal, is not supported by substantial
evidence because (1) there was no true inconsistency between his testimony
and other aspects of the record, and, alternatively, (2) corroborating evidence
rehabilitated any inconsistencies or lack of credibility. For the following
reasons, we disagree.
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A. Asylum & Withholding of Removal
To qualify for asylum, Fiengoh must establish “a well-founded fear of
persecution on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(B)(i). To determine whether he has met this burden, “the trier of
fact may weigh . . . credible testimony along with other evidence of record.”
Id. § 1158(b)(1)(B)(ii). “There is no presumption of credibility”—rather,
credibility is determined by considering the “totality of the circumstances[]
and all relevant factors.” Ghotra v. Whitaker, 912 F.3d 284, 288 (5th Cir.
2019) (quotation omitted). The IJ may infer from any singular inconsistency
or omission—regardless of its weight or relative importance—that all of the
testimony should be disregarded. Arulnanthy v. Garland, 17 F.4th 586, 596
(5th Cir. 2021).
Here, the BIA pointed to two inconsistencies and one omission by
Fiengoh that were identified by the IJ. First, the IJ noted that Fiengoh stated
in his asylum application that he was a “sympathizer and supporter” of the
SCNC, and in his CFI he claimed that his role entailed distributing posters
and flyers. However, the General Secretary of the SCNC’s affidavit
contended that Fiengoh was a “coordinator” in the organization. When
asked about this discrepancy, Fiengoh simply responded, “I don’t know why
[the General Secretary] did that.”
This discrepancy is sufficient to support the IJ’s credibility
determination. Indeed, we have previously sustained a credibility finding
based on an inconsistency regarding a petitioner’s role in a political
organization. See Singh v. Sessions, 880 F.3d 220, 223, 226 (5th Cir. 2018).
The fact that Fiengoh’s own statements about his role in the SCNC were
consistent does not obviate the issue. It was reasonable for the IJ to conclude
that a leader of the SCNC would accurately testify as to Fiengoh’s role in the
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organization. Moreover, the term “coordinator” is not synonymous with
“sympathizer and supporter,” and these roles plainly entail different levels
of responsibility and risk. Accordingly, we do not believe the evidence
compels a contrary conclusion regarding Fiengoh’s credibility.
Additionally, the BIA and IJ relied on an inconsistency in Fiengoh’s
description of the military’s attack on his family members. In his CFI and
asylum application, Fiengoh stated that his sister was raped and his brother
was killed in the incident. Moreover, at the end of Fiengoh’s CFI, the officer
provided Fiengoh with a summary of the interview and asked if Fiengoh had
anything to add, to which he repeated his prior statement that the military
raped his sister and shot his brother. However, Fiengoh’s father stated in his
affidavit that he was also “severely beaten” during the incident. When later
asked why he failed to mention his father’s beating, Fiengoh attributed the
omission to a language barrier. However, this explanation seems
questionable, particularly given that Fiengoh (1) explicitly told the officer
during the CFI that English was his “best language,” (2) confirmed that he
understood all of the officer’s questions at the end of the CFI, and (3) claims
to have taught Geography and Citizenship Education at an English-speaking
high school.
Fiengoh also argues that the purported discrepancy regarding how he
learned about the outstanding warrant is not a true inconsistency. But even
assuming he is correct,4 each of the other discrepancies alone are sufficient
to support the IJ’s adverse credibility finding. Wang, 569 F.3d at 538 (“[A]n
IJ may rely on any inconsistency or omission in making an adverse credibility
determination.” (quotation omitted)).
4
The Government seems to concede this point.
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Fiengoh’s corroborating evidence cannot alter this conclusion
because it does not “resolve the inconsistencies that the BIA found so
troubling.” Ghotra, 912 F.3d at 290. Instead, many of Fiengoh’s
“corroborating” documents contain the “hallmarks of fraud” such as
“misspellings, overwriting, incorrect information, and alterations”—
bolstering the BIA’s adverse credibility determination. Matter of O-M-O, 28
I. & N. Dec. 191, 194 (BIA 2021) (quotation omitted); see also Singh v.
Wilkinson, 838 F. App’x 109, 111 (5th Cir. 2021) (per curiam) (“[T]he IJ’s
concern about the veracity of the letters was substantially reasonable given a
report in the record.”).5 For example, the purported arrest warrant contains
an illegible date, and the word “state” is misspelled. Further, several
affidavits contain “identical” language and other indicia of unreliability. See
Hong Lin v. Holder, 383 F. App’x 393, 395 (5th Cir. 2010) (per curiam)
(upholding an adverse credibility finding based in part on discrepancies
between two versions of documents submitted by the petitioner).
In sum, given the inconsistencies, omissions, and unreliable
documents, Fiengoh has not demonstrated that the evidence should have
“compelled” a factfinder to conclude he was credible. We therefore must
defer to the BIA’s adverse credibility determination, which precludes asylum
relief. See Wang, 569 F.3d at 536–37. Further, because withholding of
removal “poses a higher bar than the ‘well-founded fear’ standard for
asylum,” Fiengoh’s failure to carry his burden for asylum also precludes his
withholding of removal claim. Ghotra, 912 F.3d at 288.
B. CAT Relief
5
Although Singh v. Wilkinson and related unpublished opinions cited herein “[are]
not controlling precedent,” they “may be [cited as] persuasive authority.” Ballard v.
Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5th Cir. R. 47.5.4).
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CAT claims are “separate from the claims for asylum and withholding
of removal and should receive separate analytical attention.” Efe v. Ashcroft,
293 F.3d 899, 906–07 (5th Cir. 2002). To qualify for CAT relief, the
applicant carries the “burden of proof” to establish “that it is more likely
than not” that he “would be tortured if removed to the proposed country of
removal.” 8 C.F.R. § 208.16(c)(2). An adverse credibility finding alone is
insufficient to prevent CAT relief where the applicant offers “non-
testimonial evidence that could independently establish his entitlement to
CAT relief.” Arulnanthy, 17 F.4th at 598; see 8 C.F.R. § 208.16(c)(3). But
Fiengoh offered only the same unreliable evidence discussed above to
support his claim for CAT relief. Accordingly, he fails to carry his burden,
and his CAT claim likewise fails. See Ghotra, 912 F.3d at 290.
IV. Conclusion
For the reasons set forth above, we DENY the petition for review.
8