KENESS FALA MUKULUMBUTU v. WILLIAM P. BARR, Attоrney General
No. 19-72499
United States Court of Appeals, Ninth Circuit
October 13, 2020
Ronald M. Gould, Sandra S. Ikuta, David A. Ezra
Agency No. A213-077-271
FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
KENESS FALA MUKULUMBUTU, Petitioner, v. WILLIAM P. BARR, Attorney General, Respondent.
No. 19-72499
Agency No. A213-077-271
OPINION
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted September 4, 2020*
Pasadena, California
Filed October 13, 2020
Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and David A. Ezra,** District Judge.
SUMMARY***
Immigration
Denying Keness Fala Mukulumbutu‘s petition for review of the Board of Immigration Appeals’ dismissal of his appeal of an immigration judge‘s order of removal, the panel held that substantial evidence supported the denial of asylum and withholding of removal on advеrse credibility grounds, and supported the denial of protection under the Convention Against Torture based on the lack of credible testimony and insufficient evidence regarding the likelihood of torture in the Democratiс Republic of Congo to meet the burden of proof.
The panel held that there was sufficient indicia of reliability to permit the Board and this court to consider Mukulumbutu‘s interviews with a Customs and Border Patrol officer and an asylum officer because both interviews were conducted under oath, with contemporaneous notes containing the questions asked, and transcribed either by a French-speaking officer or with the aid of an interpretеr.
The panel held that substantial evidence supported the adverse credibility determination based on inconsistencies, an omission, and implausibilities in the record. The panel further held that substantial evidence supported the determination that Mukulumbutu failed to rehabilitate his testimony with sufficient corroborating evidence, and that the Board did not err in concluding that some of the evidence Mukulumbutu provided was entitled to limited weight because it was from interested parties, none of whom were available for cross-examination.
The panel concluded that, without credible testimony, Mukulumbutu, could not establish a well-founded fear of persecution for asylum and withholding relief, and that the country conditions reports for the Democratic Republic of Congo and other corroborating evidence in the record did not meet the high threshold of establishing eligibility for CAT relief. The panel rejected Mukulumbutu‘s due process claims based on transcription problems and the agency‘s failure to consider testimony from his credible fear hearing, on the grounds that he failed to show prejudice.
COUNSEL
Elizabeth A. Lopez, Southern California Immigration Project, San Diego, California, for Petitioner.
Joseph H. Hunt, Assistant Attorney General; Linda S. Wernery, Assistant Director; William C. Minick, Attorney; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.
OPINION
GOULD, Circuit Judge:
Keness Fala Mukulumbutu petitions for review of the decision of the Board of Immigration Appeals (“BIA“) dismissing his appeal from the Immigration Judge‘s (“IJ“) removal order. We have jurisdiction under
In reviewing an adverse crеdibility determination, we consider “the reasons explicitly identified by the BIA, and ... the reasoning articulated in the IJ‘s ... decision in support of those reasons.” Lai v. Holder, 773 F.3d 966, 970 (9th Cir. 2014). We review factual findings, including adverse credibility determinations, for substantial еvidence. Bassene v. Holder, 737 F.3d 530, 536 (9th Cir. 2013). Due process claims are reviewed de novo. Chavez-Reyes v. Holder, 741 F.3d 1, 3 (9th Cir. 2014).
I
Mukulumbutu, a native of the Democratic Republic of the Congo (“DRC“), worked as a driver for Daniel Boteti, a politician in
Upon arrival at San Ysidro, Mukulumbutu was interviewed by a Customs and Border Patrol (CBP) officer under oath and in French. Mukulumbutu expressed a fear of returning to the DRC, and the CBP officer referred him to an asylum officer for a credible fear interview. The asylum оfficer also interviewed Mukulumbutu under oath and in French with an interpreter. The asylum officer determined that Mukulumbutu did not establish a credible fear of persecution or torture. The Department of Homeland Security (“DHS“) charged Mukulumbutu with removability as an immigrant who, at the time of admission, was not in possession of a valid entry or travel document.
II
The BIA properly reviewed the IJ‘s credibility determination for clear error. Guerra v. Barr, 951 F.3d 1128, 1133 (9th Cir. 2020) (citing
Mukulumbutu‘s inconsistent testimony about his birth date1 was not trivial because his identity was at issue. See Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (“When an inconsistency is cited as a factor supporting an adverse credibility determination, that inconsistency should not be a mere trivial error.“). Nor did his conflicting explanations resolve or adequately explain these inconsistencies. See id. (“[A]n IJ should consider ... the petitioner‘s explanation for a perceived inconsistency.“). Although “the normal limits of human understanding and memory”
a “more compelling ... story of persecution than [the] initial application.” See Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir. 2016) (quoting Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011)). It is implausible that a credible witness seeking asylum would not have mentioned having been stabbed when interviewed at the border or at the credible fear interview. The BIA reasonably found that Mukulumbutu was not credible because of his inconsistent statements about why he left Brazil and also reasonably found it implausible that Mukulumbutu randomly encountered General Kangama‘s nephew at a Brazilian bus stop after only a few days in the country.
Substantial evidence also supports the BIA‘s decision that Mukulumbutu did not rehabilitate his tеstimony with sufficient corroborating evidence. The BIA did not err in concluding that the evidence Mukulumbutu provided was entitled to limited weight because the affidavit and letters provided were from interested parties—his father, Boteti‘s widow, and an acquaintance—none of whom was available for cross-examination. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014). Because the IJ found Mukulumbutu‘s testimony not credible, the IJ was not required to give Mukulumbutu notice and an opportunity to provide additiоnal corroborating evidence. Yali Wang v. Sessions, 861 F.3d 1003, 1009 (9th Cir. 2017) (citing
Without credible testimony or sufficient corroborating evidence, Mukulumbutu cannot show that he has a “well-founded fear of persecution” based on a protected ground.
III
“An adverse credibility determination is not necessarily a death knell to CAT protection.” Shrestha, 590 F.3d at 1048. We have held that even where an applicant has been deemed not credible, “country conditions alone сan play a decisive role in granting relief under the Convention.” Kamalthas v. INS, 251 F.3d 1279, 1280 (9th Cir. 2001). Absent credible testimony, Mukulumbutu‘s CAT claim rests on country conditions reports and other corroborating evidence in the record including the letters from his family and acquaintances. This evidence does not meet the high threshold of establishing that it is more likely than not that Mukulumbutu will be tortured by or with the consent or acquiescence of a public official.
IV
Mukulumbutu contends that there was a violation оf his due process rights in view of the imperfect transcript of the February 23, 2018 hearing, which contains more than 40 notations of “indiscernible.” He also argues that the IJ should have admitted and considered the testimony from a favorаble credible fear review hearing.2 But even if these actions were in error and rose to a level that deprived Mukulumbutu of due process, he did not establish prejudice. Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir. 2018). He does not point to any instances of testimony in the February 23, 2018 hearing that, had they been properly transcribed, may have affected the outcome of the credibility determination. Moreover, Mukulumbutu fails to point to meaningful facts or statements from the credible fear review hearing that would have overcome his later adverse credibility determination when several subsequent hearings did not. Because he did not show how the agency‘s actions prejudiced him, we deny Mukulumbutu‘s petition with respect to his due process claims.
PETITION DENIED.