Ndudzi v. Garland
| Decision Date | 22 July 2022 |
| Docket Number | 20-60782 |
| Citation | 41 F.4th 686 |
| Parties | Mariana NDUDZI, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Brian Eugene Casey, Barnes & Thornburg, L.L.P., South Bend, IN, Charles Roth, National Immigrant Justice Center, Chicago, IL, for Petitioner.
Stefanie N. Hennes, Kristin A. Moresi, Trial Attorneys, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.
Before Higginbotham, Dennis, and Graves, Circuit Judges.
Mariana Ndudzi, a native and citizen of Angola, petitions for review of a Board of Immigration Appeals (BIA) decision denying her appeal of an immigration judge's (IJ) denial of her application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). She argues that the Agency erred in finding her not credible and failed to review her corroborating evidence. We vacate and remand.
Ndudzi is from Cabinda, an Angolan province that is geographically separate from the rest of Angola, with distinctive dialect and culture. Cabinda is a small, poor, coastal province of Angola that borders the Republic of Congo and the Democratic Republic of Congo. It produces half of Angola's oil but has little local control of its resources and politics.
Cabinda has been home to a "low-level separatist insurgency" since the 1960s. When Angola gained independence from Portugal in the 1970s, the separatist movement coalesced into the Front for the Liberation of the Enclave of Cabinda ("FLEC"). Membership in FLEC is apparently often familial, and FLEC has engaged a violent insurgency against Angola for decades. FLEC's fighting force has dwindled to "a few hundred men at most" in recent years due to a 2006 peace agreement with the Angolan government. But it still has carried out violent attacks in the last decade, including shooting at the Togolese national soccer team as it drove through Cabinda to the African Cup in 2019. The Angolan government now maintains an extensive military presence in Cabinda to quell dissent. Cabinda also remains impoverished and subject to regular human rights violations at the hands of Angolan government affiliates. Outside of FLEC, a substantial swath of the Cabindan population engages in peaceful demonstrations against Angolan rule. This widespread sympathy to the independence movement apparently renders many Cabindans subject to arbitrary human rights violations in Angola's attempts to cow the province, with disappearances, torture, and intimidation routine.
Ndudzi's basic allegation is that the Angolan government identified her as a supporter of the independence movement after she attended a church-organized, pro-independence rally in 2016. Soon thereafter, three armed men in government uniforms broke into her home and, in front of her children, beat and raped her, leading to a three-day hospital stay. Ndudzi claimed, in her asylum application and in sworn testimony before an IJ, that she was never formally a member of FLEC, but rather has only supported independence through peaceful protest and organizing, which is a family tradition of sorts for many Cabindans. However, the IJ interpreted unsworn, nonverbatim statements from Ndudzi's credible fear interview (CFI) as indicating that Ndudzi was a member of FLEC. The immigration judge then concluded that Ndudzi only sought to distance herself from FLEC after learning that it might be deemed a terrorist organization.1 That perceived inconsistency, along with varying statements Ndudzi gave about her preferred language and the color uniforms her attackers wore, led the IJ to deem Ndudzi not credible, which in turn formed the main basis for the IJ denying Ndudzi's asylum, removal withholding, and CAT claims. The BIA found this adverse credibility finding reasonable, and affirmed. Now, the main issue in this petition for review is whether, under our deferential standard of review, the record compels a finding that Ndudzi is credible.
This is a petition for review of a BIA final order dismissing Ndudzi's claim for asylum, withholding of removal, and protection under the CAT. The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15, and we have jurisdiction under 8 U.S.C. § 1252(b).
Under the Immigration and Nationality Act (INA), the Attorney General has discretion to grant asylum to an alien who is a "refugee." Milat v. Holder , 755 F.3d 354, 360 (5th Cir. 2014) ; 8 U.S.C. § 1158(b)(1)(A). A "refugee" is a person "unable or unwilling to return" to the person's home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). At this stage of the proceedings, there does not appear to be any real dispute that if Ndudzi's allegations are true, she could qualify as a refugee.
We generally have "authority to review only the decision of the BIA." Zhu v. Gonzales , 493 F.3d 588, 593 (5th Cir. 2007). However, we may also review the IJ's decision if "the IJ's ruling affects the BIA's decision." Id. The BIA adopted the IJ's factual findings, including the key finding that Ndudzi was not credible. We may therefore review the IJ's adverse credibility finding. See Avelar-Oliva v. Barr , 954 F.3d 757, 763 (5th Cir. 2020).
We review factual findings under the substantial evidence standard and legal questions de novo. Zhu , 493 F.3d at 594. Under the substantial evidence standard, reversal is improper "unless we decide not only that the evidence supports a contrary conclusion, but that the evidence compels it." Zhao v. Gonzales , 404 F.3d 295, 306 (5th Cir. 2005) (internal quotation marks and citation omitted). Ndudzi "must prove that the evidence is so compelling that no reasonable factfinder could reach a contrary conclusion." Id.
The main issue in this appeal is whether the BIA erred in upholding the IJ's adverse credibility finding. That decision is largely based on perceived contradictions between Ndudzi's alleged statements in her CFI and her sworn testimony in her removal hearing. Ndudzi makes two arguments against the adverse credibility finding. First, she argues that the BIA and IJ improperly relied on the CFI notes, which consisted of non-verbatim translations of her responses to questions, and to which Ndudzi did not contemporaneously swear or attest, although she did attest to a summary of the interview. Second, she argues that substantial evidence does not support the adverse-credibility decisions. We decline to address the CFI notes' admissibility because, even if those notes were properly admitted, they do not support the conclusions the Agency drew from them.
The INA provides that, "[c]onsidering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on ... the consistency between the applicant's ... written and oral statements ... without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim." 8 U.S.C. § 1158(b)(1)(B)(iii). "[I]t is the factfinder's duty to make determinations based on the credibility of the witnesses," but an adverse credibility determination must be based in "specific and cogent reasons derived from the record." Singh v. Sessions , 880 F.3d 220, 225 (5th Cir. 2018) (internal quotation marks and citation omitted). The factfinder may rely on any inconsistency or omission to determine that the petitioner is not credible in light of the totality of the circumstances, regardless of whether the inconsistency or omission goes to the heart of the applicant's claim. Ghotra v. Whitaker , 912 F.3d 284, 289 (5th Cir. 2019) ; 8 U.S.C. § 1158(b)(1)(B)(iii). We defer to "an IJ's credibility determination unless, from the totality of the circumstances, it is plain that no reasonable fact-finder could make such an adverse credibility ruling." Singh , 880 F.3d at 225 (internal quotation marks and citation omitted).
The Agency concluded that contradictions between the CFI notes and Ndudzi's testimony rendered her testimony incredible. Specifically, the IJ found that Ndudzi was not credible based on: "inconsistencies between issues surrounding the language she speaks best, her FLEC membership, and her inconsistencies with recalling certain aspects of her asylum interview but then specifically not remembering making certain statements when it was against her interest." According to the IJ, the more "complex" inconsistencies pertained to Ndudzi's membership in FLEC. The IJ cited the CFI notes' statement that Ndudzi claimed she was "part of the group that fights for independence of [Cabinda]," while at the merits hearing and in her asylum application she claimed that she never belonged to FLEC. The IJ interpreted the CFI notes as depicting that Ndudzi claimed FLEC membership, and thus her denial of FLEC membership at the asylum hearing was a disingenuous attempt to save her asylum claim. The IJ also discounted Ndudzi's explanation for this purported inconsistency, which was that she meant she belongs to the Cabindan "population," which generally fights for independence from Angola. The BIA's credibility analysis, in turn, rests on its assertion that Ndudzi "provided inconsistent evidence concerning whether she was a member of [FLEC]."
The Agency's conclusion that Ndudzi expressly claimed FLEC membership is rooted in the following (non-verbatim) summary in the CFI notes:
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