Case: 20-60782 Document: 00516507885 Page: 1 Date Filed: 10/13/2022
REVISED 10/13/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
No. 20-60782 Fifth Circuit
FILED
July 22, 2022
Mariana Ndudzi, Lyle W. Cayce
Clerk
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
Agency No. A201 665 987
Before Higginbotham, Dennis, and Graves, Circuit Judges.
James E. Graves, Jr., Circuit Judge:*
The opinion issued July 20, 2022 is withdrawn by the panel, and the
following is issued in its place:
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
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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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.
I.
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.
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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.
1
The United States has not officially labeled FLEC a terrorist organization. In
addition to denying Ndudzi’s petition on an adverse credibility finding, the IJ also
concluded, based on the adverse credibility finding, that Ndudzi is a member of FLEC and
that FLEC is a terrorist organization, relying almost exclusively on the Fourth Circuit’s
decision in Viegas v. Holder, 699 F.3d 798(4th Cir. 2012). See 8 C.F.R. § 1208.16(d)(2). The
BIA did not rely on this holding, instead affirming on the IJ’s adverse credibility ruling.
Ndudzi therefore does not seek review of the IJ’s finding that FLEC is a terrorist
organization. Indeed, because the BIA did not reach the IJ’s finding that FLEC is a terrorist
organization, this court lacks jurisdiction to review that finding. Zhu v. Gonzales, 493 F.3d
588, 593 (5th Cir. 2007).
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II.
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.
III.
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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
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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:
[Q] Why do you think the men came to your home in 2017 to
harm you?
[A] Because I was also part of the group that fights for the
independence of my province.
[Q] How did they know you were part of the group?
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[A] How do you not know? Everyone is aware of who is part of
this group.
[Q] How does everyone know?
[A] The government, compared to those people, is not the
same power.
[Q] I’m not sure I understand. You said everyone is aware of
who is part of the group. How does everyone know that?
[A] Because the government is aware of the people that belong
to flec [sic], it’s like generations of families and even [when]
they die, they pass it along. The government knows who
belongs to this group.
[Q] What does [FLEC] stand for?
[A] It’s the rebel group that fights for the independence of
Cabinda.
[Q] Did you ever use violence as part of your activities in the
group?
[A] No.
The CFI notes also state that Ndudzi feared an attack if she returned to
Angola “[b]ecause I know that my husband is on the list for this group and I
belong to the group and I’m his family. I know they would come after me too
and I don’t want to die and leave my kids behind.” The IJ and BIA
interpreted these notes as reliably indicating that Ndudzi had claimed FLEC
membership. When asked directly about it, under oath and in a transcribed
hearing, Ndudzi repeatedly denied ever having been a FLEC member or
having said she was a member, but the IJ and BIA concluded that Ndudzi was
lying, inferring that she’d learned from counsel that FLEC membership
could hinder her asylum application. There are two problems with this
conclusion. First, the purported “inconsistencies” between the CFI notes
and Ndudzi’s sworn testimony are in fact largely consistent. Second, the
Agency failed to consider Ndudzi’s corroborating evidence. That is, when
faced with seeming inconsistencies between the CFI notes and Ndudzi’s
sworn testimony, the Agency not only declined to credit Ndudzi’s sworn
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testimony, it accepted as true the CFI notes’ unsworn, non-verbatim
statements while ignoring evidence to the contrary. Cf. Nkenglefac v.
Garland, 34 F.4th 422 (5th Cir. 2022) (vacating a BIA decision affirming an
adverse credibility finding, which was based on purported inconsistencies
between sworn testimony and CFI statements, because the petitioner “was
not given the opportunity to explain perceived inconsistencies in the
government summaries of his prior uncounseled interviews”); Ferreira v.
Lynch, 831 F.3d 803, 809-11 (7th Cir. 2016) (remanding to the BIA when it
failed to consider whether “the notes from the credible-fear interview are
unreliable because . . . they are a summary and not a verbatim transcript”);
Bassene v. Holder, 737 F.3d 530, 537 (9th Cir. 2013) (noting that even “a
contradiction between a petitioner’s asylum interview, where the interview
was not recorded and notes were taken by hand, and removal hearing
testimony [alone may not be] substantial evidence to justify an adverse
credibility finding”).
A.
We must examine whether the Agency correctly found Ndudzi’s
statements to be inconsistent. The primary inconsistency, according to the
Agency, is that Ndudzi claimed FLEC membership in the CFI but disavowed
FLEC membership under oath at her subsequent merits hearing. However,
the CFI notes don’t include any direct statement by Ndudzi that she
“belongs” to FLEC, and the CFI officer never directly asked Ndudzi
whether she is a member of FLEC. She mentions FLEC only in response to
the interviewer’s question; otherwise she just says that she was “part of the
group that fights for [Cabinda’s] independence.” The closest she gets to
saying that she is a member of FLEC is when, in response to a clarifying
question after she says that the government knows the names of all Cabindans
who fight for independence, “the government is aware of the people that
belong to FLEC,” because FLEC membership is defined by familial lines and
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because the Angolan government freely labels independence supporters as
FLEC members to discredit them. That is not a direct or implied admission
of FLEC membership, just a statement that the Angolan government tracks
families with FLEC members. In other words, Ndudzi never claims FLEC
membership in the CFI notes, and there is no express inconsistency in
Ndudzi’s statements regarding FLEC.
For what appeared to be an inconsistency between her statements at
the CFI interview and at the merits hearing, Ndudzi offered an explanation.
She said that the Angolan government presumes that anyone who supports
Cabindan autonomy is a member of FLEC and thus subject to arrest. She also
offered expert opinion that FLEC is outlawed in Cabinda such that there is
no formal membership, and that a common Cabindan saying is “We are all
FLEC.” And there is no evidence that Ndudzi ever engaged in any measures
beyond attending a rally and organizing her neighbors. Ndudzi’s partner
similarly avowed that she was never a member of FLEC, and instead had
engaged in pro-independence demonstrations organized by her church.
Ndudzi thus related only peaceful, non-FLEC-related independence
campaigning, something shared by various Cabindan civil society actors like
churches, academics, and journalists. Thus, the IJ and BIA first identified an
“inconsistency” that wasn’t inconsistent, and then decided to weigh
Ndudzi’s inferred statement from a non-verbatim report, to which she had
not specifically attested, over the more formal record evidence and sworn
testimony to the contrary. On this point, it should be noted that the BIA
acknowledged that, “except for [her] denial that she was a member of the
FLEC, her hearing testimony was largely consistent with her credible fear
testimony.” Thus, the main pillar of the adverse credibility determination is
not “supported by specific and cogent reasons derived from the record.’”
Singh, 880 F.3d at 225 (quoting Wang v. Holder, 569 F.3d 531, 537 (5th Cir.
2009)).
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Furthermore, immigration officials’ credibility determinations were
influenced from the beginning by misapprehension of FLEC’s status at every
stage of proceedings below. The IJ thought that FLEC is a terrorist
organization. Yet it is essentially dormant, and the United States has never
designated it as a terror organization. That reality explains the statements
Ndudzi made seemingly conflating her views with those of FLEC. It further
explains her denial of membership in FLEC when presented to her as an
operative organization.
The BIA then cited other reasons in support of its adverse credibility
finding. It determined that Ndudzi made an inconsistent statement about
whether she entered the United States alone or with two of her children. But
this conclusion is also questionable. Before the merits hearing, Ndudzi
claimed that she entered the United States with two children, while her
partner separately entered with their third child. She also said that the reason
they did not all enter together was that she and two of her children were
kidnapped in Mexico for ransom, and were released only when her
kidnappers decided that no one would pay for her release. At the merits
hearing, Ndudzi said that she traveled from Panama to the United States with
her partner and their children. When asked if she entered the United States
“with all those family members,” she responded:
When we arrived in Mexico, we wanted to continue traveling
and crossing together. But due to the fact that I was kidnapped
in Mexico, I wasn’t able to go with the rest of my family. So the
people who kidnapped me thought I was from Central
America. But when I told them I’m from Africa, they did not
harm me. When I arrive[d] at the border with Immigration,
they told me that my . . . partner had already crossed.
While the BIA interpreted this answer as stating that Ndudzi entered the
United States “alone,” she never actually said that; she only said that her
family did not all enter together.
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The IJ and BIA next relied on Ndudzi’s inconsistent statements about
what language she speaks best. She told the credible fear interviewer that she
prefers Portuguese, but she told the IJ that she prefers French. It is true that
these statements conflict, though it should be noted that, earlier, the
government’s Portuguese interpreter—who spoke European Portuguese—
had difficulty understanding Ndudzi’s African dialect. Ndudzi’s desire to
forego Portuguese in favor of French is thus understandable.
Last, the IJ and the BIA noted inconsistencies in Ndudzi’s statements
about what kind of uniforms her attackers wore. At the hearing, Ndudzi
stated that the three men wore “military uniform[s],” while in her asylum
affidavit she says they wore “Angolan black police uniforms.” This is trivial
difference, as there is nothing in the record that indicates Angolan “military
uniforms” are not black or are different from “police uniforms.” We have
held that trivial or unimportant details may support an adverse credibility
decision. See Avelar-Oliva, 954 F.3d at 768. But here there were two
corroborating statements—one from Ndudzi’s partner and one from the
child advocate working with Ndudzi’s child who witnessed the rape—
corroborating Ndudzi’s assertion that she was raped by three men
representing the Angolan government to intimidate her from continuing to
demonstrate for Cabindan independence.
In summary, none of the inconsistencies the Agency relied on are in
fact inconsistent. That leaves only the IJ’s opinion that Ndudzi’s demeanor
was “agitated,” including when asked about “being separated from her
children” for over a year, as evidence she was not credible. We generally
defer to an IJ’s perception of an asylee’s demeanor. E.g., Wang, 569 F.3d at
539. But we have never held that demeanor alone supports an adverse
credibility finding where the Agency failed to consider an asylee’s
corroborating evidence. Cf. In re A-S-, 21 I. & N. Dec. 1106, 1112 (BIA 1998).
(suggesting that it may be inappropriate to base an adverse credibility finding
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solely on “halting and hesitating testimony” if that testimony is detailed and
consistent); In Re B-, 21 I. & N. Dec. 66, 70 (BIA 1995) (reversing denial of
asylum that was based solely on demeanor).
While this is a rare case with limited application to other factual
scenarios, this conclusion complements this court’s reasoning in Arulnanthy.
Arulnanthy v. Garland, 17 F.4th 586 (5th Cir. 2021). In that case, the
applicant “directly contradicted” himself regarding at least three key
portions of his story. Id. at 594. Arulnanthy’s testimony differed between his
CFI and immigration hearing regarding the days on which Sri Lankan officials
interviewed him, whether officials compelled him to travel to their offices,
and whether he or his mother received threats from those officials. Id. at 594-
94. Denial in Ndudzi’s case, in contrast, resulted instead from much more
limited statements that did not meaningfully contradict one another.
IV.
Last, Ndudzi challenges the Agency’s denial of her CAT claim. The
same defects noted above also apply to the Agency’s denial of Ndudzi’s CAT
claim, but with more force: whereas an adverse credibility finding is often
fatal to an asylum petition, the CAT regulations specifically require the
Agency to consider a petitioner’s corroborating evidence even if the
petitioner has been deemed not credible.
Whether a petitioner is eligible for CAT protection is a factual
question that we review under the substantial evidence standard. Zhang v.
Gonzales, 432 F.3d 339, 344 (5th Cir. 2005). To obtain protection under the
CAT, Ndudzi “must demonstrate that, if removed to a country, it is more
likely than not [s]he would be tortured by, or with the acquiescence of,
government officials acting under the color of law.” Hakim v. Holder, 628
F.3d 151, 155 (5th Cir. 2010) (citing 8 C.F.R. § 208.16(c)(2)). Torture under
the CAT is defined as:
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any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person for such purposes
as obtaining from him or her or a third person information or a
confession, punishing him or her for an act he or she or a third
person has committed or is suspected of having committed, or
intimidating or coercing him or her or a third person, or for any
reason based on discrimination of any kind, when such pain or
suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person
acting in an official capacity.
8 C.F.R. § 208.18(a)(1); see 8 C.F.R. § 208.16(c)(1).
The IJ concluded that Ndudzi is ineligible for CAT relief because of
her connection to FLEC. That conclusion, in turn, is based principally on the
IJ’s adverse credibility finding. Thus, the IJ’s denial of Ndudzi’s CAT claim
rests almost entirely on the adverse credibility determination. Before the
BIA, Ndudzi contended that the IJ “relied too heavily on the adverse
credibility finding,” but the BIA disagreed, construing the IJ as merely
decreasing the weight of Ndudzi’s testimony regarding her fear of torture.
The BIA then affirmed the IJ on the merits, stating only that Ndudzi “has
not shown that the Angolan government is searching for her, that she will be
specifically targeted and tortured, or that she would not be able to relocate
safely within Angola.” The BIA did not address Ndudzi’s supporting
evidence, but it did note that the IJ considered evidence of general conditions
in Angola.
The BIA mischaracterized the IJ’s decision, which did in fact rely
heavily on the adverse credibility determination because the IJ denied the
CAT claim “[a]t the outset . . . because the Court’s adverse credibility
finding taints the CAT claim.” Ndudzi’s claims for asylum and CAT relief
rely on identical factual bases, and thus the adverse credibility finding, if
upheld, will similarly doom Ndudzi’s CAT claim. Cf. Asres v. Holder, 364 F.
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App’x 127, 131 (5th Cir. 2010). But the Agency’s almost-exclusive reliance
on the adverse credibility finding to deny Ndudzi’s CAT claim faces two
problems. First, as discussed above, the record does not specifically support
that finding. Second, the BIA did not consider Ndudzi’s corroborating
evidence in denying her CAT claim. The applicable regulation, 8 C.F.R.
§ 1208.16(c)(3), requires the BIA to consider “[e]vidence of gross, flagrant
or mass violations of human rights within the country of removal” and any
“[o]ther relevant information regarding conditions in the country of
removal” in its likelihood-of-torture assessment. “That provision has no
exception for cases of adverse credibility determinations.” Arulnanthy, 17
F.4th at 598.
The BIA, however, only noted what the IJ had considered—a country-
conditions report—and then, like the IJ, did not meaningfully consider
anything else. “Generalized country evidence tells [courts] little about the
likelihood state actors will torture any particular person,” Qorane v. Barr, 919
F.3d 904, 911 (5th Cir. 2019), and Ndudzi also introduced more specific
evidence. Her experts described the Angolan government’s pattern of human
rights violations against pro-independence Cabindans like Ndudzi. Her
experts also specifically opined that Ndudzi was likely to be tortured or killed
on her return to Angola. They noted that the Angolan government closely
monitors Angolans who return after unsuccessfully seeking asylum in other
countries, and Ndudzi’s partner related receiving a message from an Angolan
phone number threatening that the government would find him and his
family if he returned to Angola. The IJ somewhat engaged the expert
affidavits, which it discounted by finding that imprisonment does not equate
with torture. But the IJ did not mention the experts’ opinion that the Angolan
government would also rape or murder Ndudzi. Finally, while the IJ deemed
Ndudzi’s fears “speculative,” this court has distinguished between
“speculation that government officials may be willfully blind to [a
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petitioner’s] likely future torture” and assertions that government officials
were “previously actually involved in or enabled” past torture and were
“likely to be involved again in the future.” Garcia v. Holder, 756 F.3d 885,
892-93 (5th Cir. 2014). As in Garcia, Ndudzi alleges that government agents
tortured her. That allegation, along with the corroborating evidence of the
Angolan government’s similar treatment of other pro-independence
activists, satisfies our standards for a credible fear of torture. Cf. id. (“The
alleged active involvement of public officials acting in their official capacity
and the close temporal proximity between Garcia’s contact with public
officials and the subsequent threats and beatings support his assertions and
warrant further review.”).
V.
In summary, the BIA and IJ relied heavily on an unsupported
conclusion that Ndudzi is not a credible witness. Because the adverse
credibility finding is not supported by specific and cogent reasons derived
from the record, we GRANT the petition for review, VACATE the
decisions of the BIA and IJ denying Ndudzi’s application for asylum and
CAT relief, and REMAND for further proceedings consistent with this
opinion.
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