Keness Mukulumbutu v. William Barr
977 F.3d 924
| 9th Cir. | 2020Background:
- Mukulumbutu, a native of the Democratic Republic of the Congo, worked as a driver for opposition politician Daniel Boteti; after distributing political materials he was assaulted and later witnessed Boteti’s ambush and murder.
- He fled to Angola, then to Brazil, and after an alleged threat there attempted to enter the United States and expressed fear of return at the San Ysidro port of entry.
- He underwent sworn CBP and asylum credible-fear interviews in French; the asylum officer found no credible fear. DHS charged removability; Mukulumbutu applied for asylum, withholding of removal, and CAT protection.
- The IJ denied relief based on an adverse credibility determination and insufficient corroboration; the BIA affirmed the IJ and rejected Mukulumbutu’s due process claim. He petitioned the Ninth Circuit for review.
- The Ninth Circuit reviewed the BIA’s reasons and IJ reasoning for clear-error on credibility, considered corroboration and CAT standards, and addressed alleged due-process/transcript and counsel issues.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether adverse credibility finding was supported by substantial evidence | Mukulumbutu: inconsistencies were trivial or explained; interviews were reliable | Government: material inconsistencies and omissions (birthdate, actions after shooting, omitted stabbing, implausible Brazil encounter) undermine credibility | Court: Affirmed BIA/IJ; inconsistencies and omissions were material and substantial evidence supports adverse credibility |
| Whether corroboration rehabilitated testimony | Mukulumbutu: affidavits and letters corroborate his claims | Government: letters are from interested witnesses and unavailable for cross-examination, entitled to limited weight | Court: Corroboration insufficient; IJ not required to allow more corroboration after finding testimony not credible |
| Whether CAT relief could succeed absent credible testimony | Mukulumbutu: country conditions and letters show likelihood of torture | Government: country reports do not show Mukulumbutu personally more likely than not to be tortured | Court: Denied CAT; country evidence does not overcome lack of credible testimony to meet "more likely than not" standard |
| Whether procedural errors (indecipherable transcript, excluded credible-fear hearing, limited counsel access) violated due process | Mukulumbutu: transcript gaps and failure to consider earlier favorable testimony and counsel availability prejudiced him | Government: any errors were not shown to be prejudicial; subsequent hearings and record did not change outcome | Court: No prejudicial error shown; due-process claims denied |
Key Cases Cited
- Lai v. Holder, 773 F.3d 966 (9th Cir. 2014) (review of BIA reasons and IJ reasoning for credibility assessments)
- Bassene v. Holder, 737 F.3d 530 (9th Cir. 2013) (substantial-evidence review of factual findings)
- Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010) (material inconsistencies must be more than trivial)
- Rizk v. Holder, 629 F.3d 1083 (9th Cir. 2011) (major inconsistencies on material issues support adverse credibility)
- Silva-Pereira v. Lynch, 827 F.3d 1176 (9th Cir. 2016) (newer statements that strengthen claim may undermine credibility if omitted earlier)
- Garcia v. Holder, 749 F.3d 785 (9th Cir. 2014) (limited weight for corroboration from interested witnesses unavailable for cross-examination)
- Yali Wang v. Sessions, 861 F.3d 1003 (9th Cir. 2017) (agency may rely on adverse credibility to deny corroboration opportunity)
- Kamalthas v. INS, 251 F.3d 1279 (9th Cir. 2001) (country conditions can sometimes suffice for relief even without credible testimony)
- Singh v. Whitaker, 914 F.3d 654 (9th Cir. 2019) (CAT requires more-likely-than-not standard tying torture to state action or acquiescence)
- Gomez-Velazco v. Sessions, 879 F.3d 989 (9th Cir. 2018) (due-process error requires a showing of prejudice to warrant relief)