FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENESS FALA MUKULUMBUTU, No. 19-72499
Petitioner,
Agency No.
v. A213-077-271
WILLIAM P. BARR, Attorney General,
Respondent. 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.
Opinion by Judge Gould
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
2 MUKULUMBUTU V. BARR
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 adverse 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 Democratic 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 interpreter.
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
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MUKULUMBUTU V. BARR 3
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.
4 MUKULUMBUTU V. BARR
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 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.
MUKULUMBUTU V. BARR 5
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, 2020 WL 5499914 (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
6 MUKULUMBUTU V. BARR
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
date 1 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
1
Mukulumbutu presented conflicting birth years, including 1986,
1993, and 1990. At one point he said he was 23 years old, and at another
he said he was 29 but then corrected himself to say he was 30.
MUKULUMBUTU V. BARR 7
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
8 MUKULUMBUTU V. BARR
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 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. See Singh v. Whitaker,
914 F.3d 654, 662–63 (9th Cir. 2019). Mukulumbutu argues
that the country conditions reports establish that the DRC is
“a dangerous place,” but these reports do not demonstrate
that Mukulumbutu personally will face torture if he returns.
That argument rests on Mukulumbutu’s contention that he is
the only witness to Boteti’s murder, the same claim “‘that
the BIA determined to be not credible’ in the asylum
context.” Yali Wang, 861 F.3d at 1009. No objective
evidence in the record compels us to conclude otherwise.
We deny Mukulumbutu’s petition with respect to his CAT
claim.
IV
Mukulumbutu contends that there was a violation of his
due process rights in view of the imperfect transcript of the
February 23, 2018 hearing, which contains more than
MUKULUMBUTU V. BARR 9
40 notations of “indiscernible.” He also argues that the IJ
should have admitted and considered the testimony from a
favorable 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.
2
Mukulumbutu also argues that he was “denied time to appear with
an attorney” during the February 23, 2018 merits hearing and that he
appeared at his next hearing with counsel who assisted him with filing a
Notice of Errata. But Mukulumbutu was not unrepresented for the
entirety of the proceedings and supplemented the record once he was
represented by counsel. His conclusory allegations and argument do not
persuade us that he was prejudiced by lack of counsel during the
February 23, 2018 hearing.