Wendkouni Zongo v. Merrick B. Garland

United States Court of Appeals
For the Eighth Circuit
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No. 21-3847
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Wendkouni Wilfried Arnold Zongo
Petitioner
v.
Merrick B. Garland, Attorney General of the United States
Respondent
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Petition for Review of an Order of the
Board of Immigration Appeals
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Submitted: May 11, 2023
Filed: June 16, 2023
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Before SMITH, Chief Judge, COLLOTON and BENTON, Circuit Judges.
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BENTON, Circuit Judge.
Wendkouni Wilfried Arnold Zongo petitions for review of the Board of
Immigration Appeals’ denial of asylum, withholding of removal, and Convention
Against Torture protections. Having jurisdiction under 8 U.S.C. § 1252(a), this court
denies the petition.
I.
Wendkouni Wilfried Arnold Zongo, a native of Côte d’Ivoire and citizen of
Burkina Faso, was admitted to the United States in 2016 with an F-1 student visa.
Zongo soon withdrew from the university, terminating his student visa. He sought
asylum, withholding of removal, and CAT relief based on his fears of harm from his
political opinions and affiliation with the Congress for Democracy and Progress.
Three years later, he updated his affidavit with two additional bases for fear of future
persecution: his Christian faith and Fulani ethnicity.
The Immigration Judge identified unexplained inconsistencies between the
updated affidavit and the original affidavit. The IJ found that the updated affidavit
was not filed within the one-year filing deadline. Based on an adverse credibility
finding and insufficient corroborating evidence, the IJ denied Zongo’s applications
for asylum, withholding of removal, and CAT protections. The IJ stipulated Côte
d’Ivoire as an alternate country for removal. The Board of Immigration Appeals
affirmed the IJ’s denials of each application. The BIA noted that Zongo did not—
and thus waived the right to—challenge the IJ’s finding that the one-year bar to
asylum barred his late-filed religion and particular social group claims.
Zongo appeals, alleging (1) the BIA abused its discretion by affirming the
adverse credibility determination and (2) the adverse credibility determination is not
dispositive of applications for CAT protection. “This court reviews the BIA’s
decision as the final agency action, but to the extent the BIA adopts the findings of
the IJ, this court reviews those findings as part of the final agency action.” R.K.N.
v. Holder, 701 F.3d 535, 537 (8th Cir. 2012). This court reviews credibility
determinations “for substantial evidence, and it is a rare case where an adverse
credibility determination is disturbed on appeal.” Gonzales v. Garland, 29 F.4th
989, 995 (8th Cir. 2022). “To reverse under the substantial evidence standard, the
evidence must be so compelling that no reasonable fact-finder could fail to find for
[the applicant].” Nadeem v. Holder, 599 F.3d 869, 872 (8th Cir. 2010).
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II.
Zongo argues that the BIA abused its discretion by finding no clear error in
the IJ’s adverse credibility determination.
Adverse credibility determinations must be supported by specific,
cogent reasons for disbelief. Under this standard, an immigration judge
must provide reasons that are specific enough for a reviewing court to
understand the rationale behind the decision and convincing enough
that a reasonable adjudicator would not be compelled to reach a
contrary result.
Id. (citations omitted).
An IJ may base a credibility determination on, among other things, the
demeanor, candor, or responsiveness of the applicant or witness; the
inherent plausibility of the applicant’s account; and the consistency
between the applicant’s statements and the internal consistency of such
statement, without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.
Garcia v. Barr, 954 F.3d 1095, 1098 (8th Cir. 2020), citing 8 U.S.C. §
1158(b)(1(B)(iii) (credibility standard for asylum claim) and 8 U.S.C. §
1231(b)(3)(C) (same for withholding of removal). “The IJ is in the best position to
make credibility findings because she sees the witness as the testimony is given.”
Gonzales, 29 F.4th at 995.
Zongo submitted two affidavits: the first, two-pages long, in 2017; and the
second, 30-pages long, in 2020. The 2020 affidavit presented new information,
bases for fearing persecution, and unexplained inconsistencies:
• Zongo’s testimony and the 2020 affidavit suggest he was
detained four times (once for about five weeks), versus his 2017
affidavit that refers to a non-specific number of detentions for
only “several days” at a time;
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• his testimony and the 2020 affidavit say that he was detained at
a military camp, versus his 2017 affidavit that only mentions
encounters with police; and
• his testimony and the 2020 affidavit emphasize his role in the
2014 Burkina Faso insurrection (allegedly causing a two-week
hospitalization), versus his 2017 affidavit that did not mention
the insurrection.
As the BIA noted: “[T]he Immigration Judge discussed numerous specific
inconsistencies and omissions, which [Zongo] does not specifically refute on appeal
and which the Immigration Judge found were inadequately explained.” See Chen v.
Mukasey, 510 F.3d 797, 803 (8th Cir. 2007) (“omission of fact central to claim can
be basis for adverse credibility finding”), citing Cao v. Gonzales, 442 F.3d 657, 661
(8th Cir. 2006); Kegeh v. Sessions, 865 F.3d 990, 996 (8th Cir. 2017) (“Even
ancillary inconsistencies in a petitioner’s testimony support adverse credibility
findings. And the cumulative effect of multiple inconsistencies, even if not directly
material to the petition, can support a reasonable fact finder’s adverse credibility
determination.” (cleaned up)); Garcia, 954 F.3d at 1098 (“When the BIA has
adopted and affirmed the IJ’s adverse credibility findings, we defer to those findings
if they are supported by specific, cogent reasons for disbelief.” (cleaned up)).
Because his testimony was not credible—and corroborative evidence did not
independently satisfy his burden of proof—Zongo cannot establish eligibility for
asylum or withholding of removal.
Zongo argues that he did explain some inconsistencies. For example, he tried
to explain one inconsistency by saying that there are “several days” in the 35 days
of a five-week period. But “even where the applicant provides a plausible
explanation for any inconsistencies, it does not mean the IJ committed error in
rejecting them.” Arevalo-Cortez v. Lynch, 829 F.3d 1022, 1026 (8th Cir. 2016).
See Nadeem, 599 F.3d at 873 (“even where an applicant’s explanations are plausible,
an agency is not required to accept the explanations if an alternative conclusion is
also reasonable”), citing Rafiyev v. Mukasey, 536 F.3d 853, 857 (8th Cir. 2008).
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Because the IJ identified specific, cogent reasons to disbelieve Zongo’s
testimony, sufficient evidence supports the IJ’s adverse credibility determination.
The BIA did not err in affirming the IJ’s denial of asylum or withholding of
removal. 1
III.
“To qualify for relief under CAT, a noncitizen must show ‘that it is more
likely than not that he or she would be tortured if removed to the proposed country
of removal.’” Gonzales, 29 F.4th at 996, quoting 8 C.F.R. § 1208.16(c)(2). “The
first element of a CAT claim, the likelihood determination, is a factual inquiry.” Id.This court reviews a “likelihood-of-torture determination for substantial evidence.”
Id., citing Ademo v. Lynch, 795 F.3d 823, 831 (8th Cir. 2015).
Zongo argues that the IJ’s adverse credibility determination for his asylum
and withholding-of-removal applications should not foreclose his application for
CAT protections. Compare Sivakaran v. Ashcroft, 368 F.3d 1028, 1029 (8th Cir.
2004) (“We note that the IJ’s adverse credibility determination and adverse decisions
on asylum and withholding of removal are not determinative of the CAT claim.”),
with Fofana v. Holder, 704 F.3d 554, 558 (8th Cir. 2013) (affirming denial of CAT
relief where applicant’s “CAT protection claim was based on the same discredited
testimony” as the asylum and withholding of removal claims).
1
In his brief to this court, Zongo emphasizes his (untimely) asylum claims of
future persecution based on his Fulani ethnicity and Christian faith. But these
asylum claims, as the BIA ruled, “are deemed waived” because they were not
challenged on appeal before the BIA. See Malonga v. Mukasey, 546 F.3d 546, 550
(8th Cir. 2008) (“An applicant for asylum must demonstrate by clear-and-convincing
evidence that the applicant filed the application within one year of the applicant’s
arrival . . . .”), citing 8 U.S.C. § 1158(a)(2)(B); Frango v. Gonzales, 437 F.3d 726,
728 (8th Cir. 2006) (“Section 1252(d)(1) of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 requires a petitioner, as a condition to judicial
review, to have ‘exhausted all administrative remedies available to the alien as of
right.’”), quoting 8 U.S.C. § 1252(d)(1).
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Because Zongo did not raise these arguments before the BIA, they are
unexhausted, and this court lacks jurisdiction to consider them. See Kanagu v.
Holder, 781 F.3d 912, 917 (8th Cir. 2015) (“[W]e lack jurisdiction to consider
arguments not clearly made before the agency.”). Under 8 U.S.C. § 1252(d)(1), this
court has “jurisdiction to review final orders of removal only if ‘the alien has
exhausted all administrative remedies available to the alien as of right.’” Agha v.
Holder, 743 F.3d 609, 616 (8th Cir. 2014), quoting 8 U.S.C. § 1252(d)(1). “Thus,
as a matter of statutory law, [Zongo] may appeal only issues he exhausted at the
administrative level.” Id.Moreover, regardless of whether § 1252(d)(1) precludes us from
addressing unexhausted issues, a court-imposed exhaustion
requirement is appropriate here. “Where the parties are expected to
develop the issues in an adversarial administrative proceeding, . . . the
rationale for requiring issue exhaustion is at its greatest.” Here, the
administrative proceedings before both the Immigration Court and the
BIA were adversarial, and [petitioner] was represented by counsel.
Thus, a court-imposed exhaustion requirement is proper, in addition to
the statutory requirement.
Id. (cleaned up), quoting Sims v. Apfel, 530 U.S. 103, 110 (2000).
On appeal before the BIA, Zongo did not raise any of the CAT-protection
arguments he presents in his brief to this court. This court lacks jurisdiction to
consider these arguments.2
2
Even if Zongo had properly exhausted these arguments before the BIA, it is
unlikely that he could overcome the BIA’s conclusion that there is “no error of law
or clear error of fact in the Immigration Judge’s determination that the respondent
has not shown that it is more likely than not he would be tortured upon returning to
Burkina Faso by or with the acquiescence or willful blindness of a public official.”
Moreover, Zongo did not—and has waived the right to—challenge the alternative
destination for removal of Côte d’Ivoire. See Rosales-Reyes v. Garland, 7 F.4th
755, 761 (8th Cir. 2021) (“Finally, where it is possible for a petitioner to relocate
upon removal to avoid torture, CAT relief is inappropriate.”).
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*******
The petition for review is denied.
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