Nkenglefac v. Garland

• Citation: 34 F.4th 422
• Decision Date: 18 May 2022
• Docket Number: 19-60647
• Parties: Giscard NKENGLEFAC, Petitioner, v. Merrick GARLAND, U.S. Attorney General, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

34 F.4th 422

Giscard NKENGLEFAC, Petitioner,

v.Merrick GARLAND, U.S. Attorney General, Respondent.

No. 19-60647

United States Court of Appeals, Fifth Circuit.

FILED May 18, 2022

Homero Lopez, Jr., Director, Isla, New Orleans, LA, for Petitioner.

Rosanne M. Perry, Trial Attorney, U.S. Department of Justice, Civil Division, Washington, DC, Office of Immigration Litigation, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, for Respondent.

Before Higginson, Willett, and Ho, Circuit Judges.

Stephen A. Higginson, Circuit Judge:

Petitioner Giscard Nkenglefac, a native and citizen of Cameroon, applied for admission into the United States on May 9, 2018. The immigration judge ("IJ"), Agnelis Reese, denied Nkenglefac's application for relief from removal and ordered him removed to Cameroon after determining that Nkenglefac was not credible. The Board of Immigration Appeals ("BIA") subsequently affirmed the IJ's determination, and Nkenglefac was removed to Cameroon. Nkenglefac now petitions for review of the BIA's dismissal of his appeal from the IJ's denial of application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Nkenglefac challenges the IJ's reliance on his U.S. Customs and Border Protection ("CBP") and asylum credible fear interviews that were not entered into the hearing record of the removal proceeding, nor, indeed, raised in that hearing at all, to make an adverse credibility finding.

I.

A.

Nkenglefac testified before the IJ¹ that he was a native and citizen of Cameroon, living in the city of Muyuka. After graduating high school in 2008, he was prevented from obtaining further education because he spoke English instead of French. In 2013, after working two other jobs, Nkenglefac bought a taxi and became a taxi driver.

In January 2014, Nkenglefac became a member of the Southern Cameroon National Council ("SCNC"), a Cameroonian political party. As a member of the party, Nkenglefac organized and attended political meetings, protests, and rallies. He also attempted to recruit new party members. The SCNC's goal was for the English-speaking southern part of Cameroon to secede from Cameroon. On cross-examination, he acknowledged that the government of Cameroon considers the SCNC to be a criminal organization.

Nkenglefac was arrested in January 2017, while attending a secret SCNC meeting at a house in Muyuka. There were approximately 80 to 100 people present when police arrived. Some people fled and escaped; others, including Nkenglefac, were caught and arrested. Nkenglefac was held at a police station for seven days before his release. At the time of his arrest, police forced him to stand with his arms over his head and jump like a frog for 30 minutes. Once Nkenglefac arrived at the police station, police interviewed him for 10 minutes and then placed him in an unventilated cell. The police beat him with a baton every morning while questioning him about the leadership of the SCNC, and they refused to offer him food. Nkenglefac suffered pain but did not suffer any physical injuries from this incident. Prior to Nkenglefac's release, police ordered him to sign a document stating that he would no longer participate in any SCNC activities.

The following month, Nkenglefac attended a secret SCNC meeting in the city of Lilale, approximately 40 minutes from Muyuka. Police, security officers, and soldiers broke up the meeting and attempted to arrest those present. Six officials caught Nkenglefac as he attempted to flee. They began beating him with batons and fists; they also kicked him. One official grabbed Nkenglefac's arm and dislocated his shoulder

, and two other officials beat him with guns until he lost consciousness. The police took Nkenglefac to the police station briefly before he was released. His family took him to a local hospital, which did not admit him. His family then took him to a regional hospital in the city of Buea, which was approximately one hour from Muyuka. Nkenglefac regained consciousness in the hospital, where he remained for 45 days. He suffered swelling, bruising, blood clots on his eyes, and restricted arm movements due to his shoulder injury.

After his release from the hospital, Nkenglefac stayed in Buea and lived with his aunt for about a month. He then returned to his home in Muyuka and learned that the police had issued a warrant for his arrest. Rather than stay and face the charges, Nkenglefac returned to Buea in May 2017 and rented an apartment. He remained in Buea for approximately 8 to 12 months.

Nkenglefac's next encounter with police happened in Buea in 2018. Police approached him while he was in his taxi distributing flyers that encouraged all English-speaking southern Cameroonians to engage in a general strike. When police approached his vehicle, Nkenglefac sped off. The police pursued him for 15 to 20 minutes but were unable to catch him. Nkenglefac wrecked his taxi into some water near a banana plantation. A passerby took him to Muyuka. He then fled to the city of Kumba. A friend later told him that his taxi had been burned and that the police were looking for him.

Upon learning that the police were looking for him, Nkenglefac fled to Lagos, Nigeria, where he stayed for approximately two weeks. At that point, Nkenglefac learned that Nigerian police were arresting SCNC members and sending them back to Cameroon. Nkenglefac attempted to use his Cameroonian passport to depart Nigeria for Ecuador; however, he was stopped and almost arrested. Nkenglefac returned to the hotel where he had been staying. The next day, he smuggled himself back into Cameroon, avoiding official reentry. He hid on a plantation farm in Muyuka for two to three weeks.

A family member was eventually able to arrange Nkenglefac's departure from Cameroon. He left Muyuka for Douala, a large city in Cameroon, where he was able to use his Cameroonian passport to fly from Cameroon to Rwanda. He then traveled to South Africa, Brazil, Peru, and, finally, Ecuador. He arrived in Ecuador in March 2018, and he spent approximately 10 days there. After leaving Ecuador, Nkenglefac traveled to Colombia with the assistance of a Cameroonian living in Ecuador. He then spent two months travelling to the United States, eventually reaching the country in May 2018. Upon arrival to the United States, Nkenglefac turned himself in to Immigration Officers at the border.

During Nkenglefac's travels to the United States, he was in contact with a cousin in Cameroon. His cousin informed him that the military went to his family home and attacked his younger brother, who was also involved in SCNC protests, beating him to death. His family home was also burned down. After speaking with his cousin, Nkenglefac had no further contact with his family.

During cross-examination and upon questioning by the IJ, Nkenglefac provided further information about his travels from Cameroon to the United States. For example, Nkenglefac was in Costa Rica for six days. He did not seek asylum there, but he did obtain an entry permit and received transitionary permanency status, which authorized Nkenglefac to remain in Costa Rica for 25 days and gave him the ability to apply to stay longer. Additionally, Nkenglefac stated that he worked while he was staying in Nicaragua and that he lost his Cameroonian passport, phone, and money when the boat he was riding in capsized.

The IJ also inquired about the death of Nkenglefac's father. Nkenglefac explained that his father died in November 2017, while Nkenglefac was still living in Cameroon. At that time, soldiers were conducting a crackdown in Muyuka. They were going house to house, searching for weapons. The soldiers seized his father's farming tools and, during the search of the house, attempted to seize his father's hunting rifle. His father struggled with the soldiers over the gun and was shot in the chest during the struggle. He died of his injuries four to five days later.

B.

On November 20, 2018, the IJ issued her opinion, deciding that Nkenglefac was not credible. The IJ identified several omissions and inconsistencies, highlighting that, in his declaration in support of his application for relief from removal, Nkenglefac stated that he had been arrested "several" times but provided different answers in both his CBP interview (one arrest during a strike in 2017) and his credible fear interview (two arrests). Secondly, the IJ observed that during his credible fear interview, Nkenglefac relayed that his family's home was searched, and his father's tools were seized, but he apparently did not mention that his father was shot and killed during the incident. Highlighting these alleged inconsistencies, the IJ denied Nkenglefac's application for relief from removal based on lack of credibility.²

Because Nkenglefac had failed to demonstrate that he was eligible for asylum, the IJ concluded that he had also failed to demonstrate that he was entitled to withholding of removal. Finally, the IJ concluded that Nkenglefac was not entitled to relief under the CAT because his claim was based on his testimony, which was not credible, and because he had failed to provide corroborating evidence. Therefore, the IJ denied Nkenglefac's application for relief from removal and ordered him removed to Cameroon.

C.

Nkenglefac timely appealed to the BIA. He argued that the IJ erred by finding that his testimony was not credible because the finding was based on perceived inconsistencies drawn from documents never presented at the removal hearing, namely, the government summaries of his interviews with CBP and asylum officers. He asserted that the IJ's reliance on inferences drawn from these documents, without giving him an opportunity to explain or challenge the alleged inconsistencies, violated his due process rights. He argued that the summaries of those interviews were consistent with his testimony and that many of the inconsistencies or omissions perceived by the IJ were minor and easily...