NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 19 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES ABORUNGONG, No. 20-72198
Petitioner, Agency No. A201-683-235
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 5, 2021**
Anchorage, Alaska
Before: WARDLAW, MILLER, and BADE, Circuit Judges.
Charles Aborungong petitions for review of the Board of Immigration
Appeals’ (BIA) decision affirming an Immigration Judge’s (IJ) denial of his
application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
and we deny the petition in part and dismiss it in part.
1. Aborungong argues the agency improperly relied on his border
interview in finding him not credible based on inconsistencies between his
statements during that interview and his subsequent testimony. However, the
totality of the circumstances indicates that Aborungong’s border interview was
reliable. See In re J-C-H-F-, 27 I. & N. Dec. 211, 213 (B.I.A. 2018). Aborungong
is a native English speaker, and the border interview was conducted in English
without an interpreter. See Singh v. INS, 292 F.3d 1017, 1022 (9th Cir. 2002). The
interview was transcribed, not merely summarized. See, e.g., Li v. Ashcroft, 378
F.3d 959, 963 (9th Cir. 2004) (recognizing that transcription of border interview
weighed in favor of reliability). And, while Aborungong asserts that he felt
“rushed . . . to sign every page” of the transcript to confirm its accuracy and did not
fully review the transcript before signing, he points to no evidence that the officer
inaccurately transcribed the interview. Moreover, although Aborungong notes that
the interview occurred at 4:00 a.m., the transcript contains no indication that
Aborungong was too tired or confused to give accurate testimony. Finally,
Aborungong swore to answer all questions truthfully during that interview, and he
confirmed in his testimony to the IJ that he had “answered all the questions asked
[during the border interview] truthfully.”
2. Aborungong argues the agency’s adverse credibility determination is
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unsupported by substantial evidence. We disagree. The agency identified several
discrepancies between Aborungong’s border interview and his testimony to the IJ
regarding whether he returned home after the military came to his house, how
many times he was interrogated and beaten in detention, what kinds of injuries he
suffered, and the date of the protest that led to his arrest.1 Apart from disputing the
reliability of the border interview, Aborungong does not challenge the agency’s
reliance on any of these inconsistencies.
Aborungong does argue that the agency improperly relied on speculation in
finding his account of the police waiting a month to search for him at his home
after he escaped from custody implausible. However, we need not determine
whether this finding was “a reasonable evaluation of the testimony and evidence
based on common sense.” Lalayan v. Garland, 4 F.4th 822, 2021 WL 2933340, at
*10 (9th Cir. 2021). Even setting aside the agency’s findings on the plausibility of
this aspect of Aborungong’s account, substantial evidence supports the agency’s
adverse credibility determination given the numerous inconsistencies in his
testimony.
1
While the BIA recognized that the discrepancy regarding the date of the
protest was “not a significant inconsistency” and would “not on its own support an
adverse credibility determination,” it appropriately concluded that this
inconsistency, “considered collectively” with the others, “depriv[ed]
[Aborungong’s] claim of the requisite ring of truth.” Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011) (quotation marks and citation omitted).
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3. Aborungong argues that country condition evidence compels the
conclusion that he is entitled to CAT relief. However, Aborungong did not raise
this argument to the BIA, and the BIA accordingly declined to reach the issue.
Because this issue is unexhausted, we lack jurisdiction to reach it. See Sola v.
Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam).
DENIED IN PART AND DISMISSED IN PART.
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