NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES NJOIKOU ABAJEIH, AKA No. 20-72348
Charles Abajeih Njoku,
Agency No. A213-187-583
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 9, 2021
Pasadena, California
Before: KELLY,** M. SMITH, and FORREST, Circuit Judges.
Petitioner Charles Njoikou Abajeih seeks review of a Board of Immigration
Appeals’s (BIA) decision dismissing his appeal from an Immigration Judge’s (IJ)
denial of his applications for asylum, withholding of removal, and relief under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Paul J. Kelly, Jr., United States Circuit Judge for the
U.S. Court of Appeals for the Tenth Circuit, sitting by designation.
Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252,
and we deny the petition in part and remand to the BIA for further proceedings.
The parties are familiar with the facts, so we provide only a brief outline.
Petitioner is a native English speaker from Cameroon, twice detained by his
government. After his first release in November 2015, Petitioner moved to
Nigeria, where he used a fake marriage certificate, false employment information,
and a Nigerian passport under a false name to apply for a U.S. visa. That visa was
denied because Petitioner’s fingerprints connected him to two identities.
Petitioner returned to Cameroon. In December 2018, military personnel
accused Petitioner of using money from his brother to support separatists, detained
him, and beat him. Petitioner was released when his brother provided payment to
the prison commander in April 2019. On September 4, 2019, Petitioner was
detained at the San Ysidro, California port of entry and on September 8, 2019,
gave a sworn statement in proceedings under INA § 235(b)(1). Petitioner falsely
claimed that he had never used another name and had applied for a U.S. visa once
and was denied.
Pursuant to a Notice to Appear, Petitioner appeared pro se in immigration
court and admitted entering this country without entry documents. See 8 U.S.C.
§ 1182(a)(7)(A)(i)(I). In his testimony before the IJ, Petitioner provided multiple
dates of when he left Cameroon for the second time. He eventually clarified that
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his second arrest was in December 2018 and his second time leaving Cameroon
was upon his release in 2019. The IJ denied Petitioner’s applications for asylum
and withholding of removal based upon an adverse credibility determination. The
IJ also found Petitioner’s claim for CAT protection too weak because of incredible
testimony and a failure to show a likelihood of torture. The BIA affirmed on these
grounds.
STANDARD OF REVIEW
We review the BIA’s decision except where it explicitly adopts the IJ’s
opinion. Plancarte v. Garland, 9 F.4th 1146, 1151 (9th Cir. 2021). We review
adverse credibility determinations under a substantial evidence standard. Bassene
v. Holder, 737 F.3d 530, 536 (9th Cir. 2013). “[C]redibility determinations are
made—and must be reviewed—based on ‘the totality of the circumstances and all
relevant factors,’ not a single factor.” Alam v. Garland, 11 F.4th 1133, 1135 (9th
Cir. 2021) (en banc) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The substantial
evidence standard is extremely deferential because an agency’s “reasonable
findings may not be disturbed.” Garland v. Ming Dai, 141 S. Ct. 1669, 1677
(2021). The agency may abuse its discretion, however, when it ignores arguments
or evidence. Vitug v. Holder, 723 F.3d 1056, 1064 (9th Cir. 2013).
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A. Asylum and Withholding of Removal
The BIA affirmed based on the adverse credibility determination noting
Petitioner’s inconsistent testimony, omissions, and fraudulent actions. The record
supports the BIA’s conclusion that Petitioner testified inconsistently as to when he
left Cameroon last. During his final removal hearing, Petitioner testified that he
left Cameroon for the second time in December 2016, but also that he lived in
Cameroon from March 2016 to December 2018. After the IJ pointed out that
Petitioner could not have fled Cameroon in December 2016 if he was living in its
capital for two more years, he testified that he was arrested for the second time in
December 2018 and fled for the second time after his release in April 2019.
Although the IJ noted that Petitioner’s subsequent testimony “br[ought] back
into alignment his second detention,” realigning testimony does not change the fact
that testimony is inconsistent. The IJ’s finding that Petitioner’s testimony was
“internally inconsistent[,] . . . implausible, and difficult to believe” is a permissible
view of the evidence and supports the adverse credibility determination. See 8
U.S.C. § 1158(b)(1)(B)(iii); Li v. Garland, 13 F.4th 954, 958–59 (9th Cir. 2021).
It is a conclusion that a reasonable adjudicator could make. See Ming Dai, 141
S. Ct. at 1677. Substantial evidence thus supports the BIA’s decision. 8 U.S.C.
§ 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 483–84 (1992).
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The agency also viewed as material Petitioner’s omissions and false
statements made under oath. “[I]n general, ‘omissions are less probative of
credibility than inconsistencies created by direct contradictions in evidence and
testimony.’” Iman v. Barr, 972 F.3d 1058, 1067 (9th Cir. 2020) (quoting Lai v.
Holder, 773 F.3d 966, 971 (9th Cir. 2014)). However, the agency may rely on
omissions when making credibility determinations as long as they are “weighed in
light of the totality of the circumstances and all relevant factors.” Id. In his INA
§ 235(b)(1) sworn statement, Petitioner lied about a second time he applied for a
U.S. visa and did not disclose that he had provided fraudulent information
including a false name. Petitioner’s omissions were part of statements taken under
oath and recorded; furthermore, he admitted to initialing each page of the report,
and he was cross-examined on the issue. See 8 U.S.C. § 1225(b)(1). The IJ was
not required to credit this explanation as “even minor inconsistencies that have a
bearing on a petitioner’s veracity may constitute the basis for an adverse credibility
determination.” Li, 13 F.4th at 959 (quoting Ren v. Holder, 648 F.3d 1079, 1089
(9th Cir. 2011)).
B. CAT Protection
The BIA affirmed the IJ’s decision to deny CAT protection based on its
adverse credibility determination and the merits. Of course, the BIA must provide
its reasons and demonstrate proper consideration of all factors when reviewing a
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claim for CAT relief. Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.
2006). This includes consideration of country conditions in the record. See 8
C.F.R. § 208.16(c)(3) (2020). In Aguilar-Ramos v. Holder, this court decided that
“the failure of the IJ and BIA to consider evidence of country conditions
constitutes reversible error.” 594 F.3d 701, 705 (9th Cir. 2010). This is because
country conditions alone could satisfy a CAT applicant’s burden. Id. Here, neither
the IJ nor the BIA discussed the country conditions in the record. And we cannot
assume that the BIA considered matters upon which its opinion is silent. Etemadi
v. Garland, 12 F.4th 1013, 1026 (9th Cir. 2021).
We DENY the petition for review of Petitioner’s asylum and withholding of
removal claims and REMAND Petitioner’s CAT claim to the BIA for proceedings
consistent with this memorandum.
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