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FOSSING v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-05-07No. No. 20-70385

Summary

Holding. The petition for review is denied because substantial evidence supports the immigration judge's adverse credibility determination, and without credible testimony, Fossing failed to establish eligibility for asylum, withholding of removal, or Convention Against Torture protection.

Athanase Fossing, a Cameroonian national, sought asylum, withholding of removal, and protection under the Convention Against Torture. An immigration judge found his testimony not credible due to multiple inconsistencies in his account of detention and escape from Cameroon—including conflicting details about the frequency of beatings, provision of food, means of border crossing, and his sister's location. The Board of Immigration Appeals upheld this credibility determination.

With Fossing's testimony discredited, his asylum and withholding claims failed because he presented no other credible evidence of past persecution or future risk. Similarly, he could not establish the necessary probability that torture would occur if returned to Cameroon. The court found substantial evidence supported all adverse agency determinations and therefore denied his petition for review.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Credibility determinations based on inconsistencies in applicant statements
  • Sufficiency of evidence for asylum claims absent credible testimony
  • Application of Convention Against Torture standards to removal proceedings
  • Standard of review for Board of Immigration Appeals decisions

Procedural posture

The petitioner appealed the Board of Immigration Appeals' affirmance of an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM **

Athanase T. Fossing, a native and citizen of the Republic of Cameroon, petitions for review from an order of the Board of Immigration Appeals (“BIA”) upholding the denial of his claims for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

The immigration judge (“IJ”) found Fossings testimony not credible and accorded it no weight, and the BIA upheld that determination. The adverse credibility determination was supported by substantial evidence. The IJ and the BIA (collectively, “the agency”) discussed multiple examples of how Fossings description of his persecution changed over time. The IJ must assess credibility under “the totality of the circumstances” and may arrive at an adverse credibility determination based on “any inaccuracies or falsehoods in [the applicants] statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicants claim.” 8 U.S.C. § 1158(b)(1)(B)(iii); see also id. §§ 1229a(c)(4)(C), 1231(b)(3)(C). Taken together, these inconsistencies justify the IJs decision to discount Fossings testimony. See Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010).

Fossing testified that he was detained for over two weeks by the Cameroonian military, which mistook him for a member of a Southern Cameroon separatist group. But Fossings accounts of his detention and his subsequent escape from Cameroon were inconsistent. For example, in his credible fear interview, Fossing told the asylum officer that he was beaten in detention “every other day,” but Fossing testified before the IJ that he was beaten “[t]wo times a day.” In his affidavit in support of his asylum application, Fossing described being detained “with no food,” but at his hearing, Fossing told the IJ that he was “given bread once a day.” Fossings affidavit described his escape “to Nigeria on foot,” but when asked by the IJ how he physically crossed the border, Fossing claimed to have crossed “in a boat.” In addition, during his credible fear interview, Fossing informed the asylum officer that he had a sister, Isabella, who lived in Maryland, and Fossing provided the officer with Isabellas phone number. Fossings asylum application, however, indicated that Isabella still lived in Bamenda, Cameroon. Fossing was given the opportunity to account for these inconsistencies, but the agency deemed his explanations unconvincing, and the record does not compel a contrary conclusion. See Kin v. Holder, 595 F.3d 1050, 1054-55 (9th Cir. 2010). Taken together, these discrepancies constitute substantial evidence to support the agencys adverse credibility determination. See 8 U.S.C. § 1158(b)(1)(B)(iii).

In the absence of credible testimony, Fossings asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). The documentary evidence he submitted did not independently demonstrate that he had suffered past persecution or that he faces a sufficient risk of future persecution. See Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017).

Substantial evidence also supports the agencys denial of CAT relief because Fossing failed to show it is more likely than not that he will be tortured if returned to the Republic of Cameroon. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014).

PETITION DENIED.