Elvis Ndum v. Merrick Garland
20-73481
| 9th Cir. | Oct 13, 2021Background
- Petitioner Elvis Achu Ndum sought review of the BIA’s order affirming the Immigration Judge’s denial of his applications for asylum, withholding of removal, and CAT protection.
- The IJ made an adverse credibility determination based on inconsistencies between Ndum’s credible-fear interview and his later testimony, plus implausibilities and omissions; the BIA affirmed on the same grounds.
- Ndum argued the credible-fear interview report contained clerical errors and that the later inconsistencies should not defeat his claims. The courts found no indication of clerical errors in the report.
- Because the adverse credibility finding was upheld and Ndum provided no sufficient corroboration, the court concluded he failed to meet the lower asylum standard and thus also failed the higher withholding standard.
- For CAT relief, the court acknowledged country conditions show violence against Anglophones but held the record did not show it is more likely than not that Ndum would be tortured by or with the consent/acquiescence of public officials.
- The court declined to take judicial notice of post-record (2020) Cameroon country-conditions evidence because it was not before the BIA and did not meet the narrow criteria for post-record supplementation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the adverse credibility finding was supported by substantial evidence | Ndum: credible-fear interview report contained errors; later inconsistencies are excusable | Government: inconsistencies between credible-fear interview and hearings, plus omissions/implausibilities, justify adverse finding | Court: Adverse credibility supported by specific, cogent reasons and substantial evidence |
| Whether adverse credibility precludes asylum | Ndum: despite credibility issues, asylum should be granted on record/country conditions | Government: without credible testimony or corroboration, asylum not established | Court: Without credibility or corroboration, asylum claim fails |
| Whether withholding of removal is established | Ndum: meets withholding standard based on risk as Anglophone | Government: higher standard not met; asylum already fails | Court: Because asylum (lower standard) fails, withholding (higher) necessarily fails |
| Whether CAT protection established and whether court may consider post-record country-conditions evidence | Ndum: country conditions (including post-2019 evidence) show likelihood of torture; credibility finding shouldn't be fatal | Government: record lacks proof public officials would consent/acquiesce; post-record evidence not before BIA | Court: CAT denied—record fails more-likely-than-not showing; court declines to take judicial notice of 2020 country evidence |
Key Cases Cited
- Duran-Rodriguez v. Barr, 918 F.3d 1025 (9th Cir. 2019) (standard: substantial-evidence review for asylum/withholding/CAT)
- Mukulumbutu v. Barr, 977 F.3d 924 (9th Cir. 2020) (credible-fear interview reliability may support adverse credibility findings)
- Gui v. INS, 280 F.3d 1217 (9th Cir. 2002) (BIA must provide legitimate, articulable, specific and cogent reasons for adverse credibility)
- Ramirez-Munoz v. Lynch, 816 F.3d 1226 (9th Cir. 2016) (failure to meet asylum standard means withholding standard also fails)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (adverse credibility does not automatically preclude CAT relief)
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (country conditions can independently support CAT relief despite non-credible testimony)
- Gafoor v. INS, 231 F.3d 645 (9th Cir. 2000) (limits on judicial notice/post-record country evidence; Fisher en banc framework applies)
- Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc) (circumstances in which courts may consider changed country conditions)