Mukulumbutu v. Barr

• Citation: 977 F.3d 924
• Decision Date: 13 October 2020
• Docket Number: No. 19-72499,19-72499
• Parties: Keness Fala MUKULUMBUTU, Petitioner, v. William P. BARR, Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

977 F.3d 924

Keness Fala MUKULUMBUTU, Petitioner,

v.William P. BARR, Attorney General, Respondent.

No. 19-72499

United States Court of Appeals, Ninth Circuit.

Submitted September 4, 2020^* Pasadena, California

Filed October 13, 2020

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.

On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. AXXX-XX7-271

Before: Ronald M. Gould and Sandra S. Ikuta, Circuit Judges, and David A. Ezra,^** District Judge.

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 8 U.S.C. § 1252. We deny the petition for review.

In reviewing an adverse credibility 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 evidence. 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 Kinshasa and a critic of the DRC government. After handing out political t-shirts for Boteti, Mukulumbutu was beaten and stabbed in the leg. On July 6, 2008, Mukulumbutu was driving Boteti when they were ambushed, and Boteti was shot and killed. Mukulumbutu fled to Angola, where he remained for nine years. In Angola, he began working for General Bento Kangama, but eventually fled to Brazil after Kangama sought revenge over Mukulumbutu's relationship with Kangama's niece. After five days in Brazil, Mukulumbutu encountered Kangama's nephew, who said he would seek revenge. Mukulumbutu then fled Brazil and attempted to enter the United States.

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 officer 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. 8 U.S.C. § 1182(a)(7)(A)(i)(I). Mukulumbutu applied for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). The IJ denied relief based on an adverse credibility determination and failure to provide sufficient corroborating evidence. The BIA held that the IJ did not clearly err and further denied Mukulumbutu's due process claim. Mukulumbutu now petitions our court for review.

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 8 C.F.R. § 1003.1(d)(3)(i) ), amended by No. 18-71070, 974 F.3d 909 (9th Cir. Mar. 3, 2020). The BIA based its adverse credibility determination on relevant factors, including "the inherent plausibility" of Mukulumbutu's account and "the consistency between [his] written and oral statements" in his interviews and hearings, and his application for asylum and withholding of removal. See 8 U.S.C. § 1158(b)(1)(B)(iii). Contrary to Mukulumbutu's argument, there were sufficient indicia of reliability to permit the BIA and us to consider both interviews because the 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 interpreter. See Singh v. Gonzales , 403 F.3d 1081, 1089 (9th Cir. 2005).

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" may in some cases excuse a person's failure to supply the correct date and time for a shooting, see id. , the inconsistencies about what Mukulumbutu did after the Boteti shooting were not trivial. He testified that he fled the scene of the shooting and took a taxi to his uncle's house but told the asylum officer that he took Boteti to the hospital. These inconsistencies concerned Mukulumbutu's contention that, as the only witness to Boteti's murder, he will be persecuted. See Rizk v. Holder , 629 F.3d 1083, 1088 (9th Cir. 2011) ("Major inconsistencies on issues material to the alien's claim of persecution constitute substantial evidence supporting an adverse credibility determination."). Moreover, Mukulumbutu's omission of the fact that he was stabbed in the leg sharply undermined his credibility because the fact of the stabbing would have made his case for asylum 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 testimony 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 additional corroborating evidence. Yali Wang v. Sessions , 861 F.3d 1003, 1009 (9th Cir. 2017) (citing 8 U.S.C. § 1158(b)(1)(B)(ii)– (iii) ).

Without credible testimony or sufficient corroborating evidence, Mukulumbutu cannot show that he has a "well-founded fear of persecution" based on a protected ground. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A), 1229a(c)(4)(A). We deny Mukulumbutu's petition for review with respect to his claim for asylum and also his withholding of removal claim. Ramirez-Munoz v. Lynch , 816 F.3d 1226, 1230 (9th Cir. 2016) ("A petitioner who fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the more stringent standard for withholding of removal.").

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 can play a decisive role in granting relief under the Convention." Kamalthas...