Williams R. Nche v. MERRICK B. GARLAND, United States Attorney General

UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT
_________________________________
WILLIAMS R. NCHE,
Petitioner,
v.
MERRICK B. GARLAND, United States
Attorney General,
Respondent.
No. 20-9621
(Petition for Review)
_________________________________
ORDER AND JUDGMENT*
_________________________________
Before McHUGH, BALDOCK, and MORITZ, Circuit Judges.
_________________________________
Williams Robert Nche, a native and citizen of Cameroon, petitions for review
of a decision by the Board of Immigration Appeals (BIA) upholding the denial of his
applications for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT). Exercising jurisdiction under 8 U.S.C. § 1252(a)(1), we
deny the petition for review.
* After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
FILED
United States Court of Appeals
Tenth Circuit
September 14, 2021
Christopher M. Wolpert
Clerk of Court
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BACKGROUND
The Department of Homeland Security served Nche with a Notice to Appear in
2019, charging him as removable because he was present in the United States without
a valid, unexpired immigrant visa. Nche admitted the factual allegations in the
Notice to Appear and conceded removability but applied for asylum, withholding of
removal, and protection under the CAT. An immigration judge (IJ) held a hearing at
which Nche testified and presented documentary evidence. Nche’s father is
Anglophone, but his mother is Francophone, and he grew up in a Francophone
village. He testified in French, but he also speaks Pidgin English.
Nche testified he faced persecution in Cameroon because he was part of the
Anglophone community and a member of the Southern Cameroons National Council
(SCNC), a political group that advocates for the nonviolent secession of Anglophone
Southern Cameroon. Nche testified Cameroonian authorities arrested, beat, and
detained him on three occasions. Nche also presented expert reports from a social
worker and a forensic medical examiner. The social worker diagnosed him with
post-traumatic stress disorder and the forensic medical examiner opined that scars on
his body were consistent with the abuse he described.
The IJ found Nche was “generally credible,” but certain aspects of his
testimony, particularly those “regarding his past harm and fear of returning to
Cameroon, specifically, his membership in the [SCNC], lacked specificity and
details.” R. at 47. The IJ therefore concluded Nche’s testimony “was not sufficiently
detailed or persuasive to circumvent his need for reasonably obtainable corroborative
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evidence,” such as affidavits from family members or friends confirming his
Anglophone ethnicity or membership in the SCNC. Id. at 48. Because Nche did not
meet his burden of proof for asylum or withholding of removal, the IJ denied those
forms of relief. On Nche’s claim for CAT protection, the IJ concluded Nche’s
country conditions evidence was insufficient to show it would be more likely than not
that he would be tortured if he returned to Cameroon, noting the prohibition on
torture in the Cameroonian constitution and the lack of evidence Cameroonian
authorities continue to look for Nche. The BIA affirmed the decision of the IJ and
dismissed the appeal, concluding the IJ’s factual findings were not clearly erroneous.
Nche timely filed a petition for review with this court.
DISCUSSION
Because the BIA decision was issued by a single board member, we review it
“as the final agency determination and limit our review to issues specifically
addressed therein.” Diallo v. Gonzales, 447 F.3d 1274, 1279 (10th Cir. 2006). “But,
when seeking to understand the grounds provided by the BIA, we are not precluded
from consulting the IJ’s more complete explanation of those same grounds.”
Htun v. Lynch, 818 F.3d 1111, 1118 (10th Cir. 2016) (internal quotation marks
omitted). “[W]e review the agency’s findings of fact under the substantial evidence
standard. Under that test, our duty is to guarantee that factual determinations are
supported by reasonable, substantial and probative evidence considering the record as
a whole.” Elzour v. Ashcroft, 378 F.3d 1143, 1150 (10th Cir. 2004). “To obtain
reversal of factual findings, a petitioner must show the evidence he presented was so
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compelling that no reasonable factfinder could find as the BIA did.” Gutierrez-
Orozco v. Lynch, 810 F.3d 1243, 1245 (10th Cir. 2016) (internal quotation marks
omitted).
1. Asylum and Withholding of Removal
To be eligible for asylum, an alien must meet the definition of a “refugee”—a
person who has suffered persecution or has a well-founded fear of future persecution
on account of his or her race, religion, nationality, membership in a particular social
group, or political opinion. See 8 U.S.C. § 1101(a)(42). To be eligible for
withholding of removal, Nche needed to establish his “life or freedom would be
threatened in [Cameroon] because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.” Id. § 1231(b)(3)(A). Nche bore the
burden for each showing. See id. § 1229a(c)(4)(A). Failure to meet the showing
required for asylum eligibility necessarily results in failure to show eligibility for
withholding of removal. See Zhi Wei Pang v. Holder, 665 F.3d 1226, 1234
(10th Cir. 2012).
Under the REAL ID Act, “[w]here the [IJ] determines that the applicant should
provide evidence which corroborates otherwise credible testimony, such evidence
must be provided unless the applicant demonstrates that the applicant does not have
the evidence and cannot reasonably obtain the evidence.” 8 U.S.C. § 1229a(c)(4)(B).
Although the IJ found Nche’s testimony generally credible, he also determined there
existed reasonably obtainable corroborating evidence Nche failed to provide, such as
evidence establishing he was Anglophone or that a Cameroonian person’s ethnicity
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comes from his or her father. The BIA “agree[d] with the [IJ] that [Nche] ha[d] not
submitted sufficient evidence relating to his past or future harm and membership in
SCNC, including a membership card or letter, or statements from individual[s]
familiar with his experiences and activities in Cameroon, to corroborate his claim.”
R. at 4–5. The BIA further did not find clearly erroneous the IJ’s rejection of Nche’s
explanations for not presenting such information. See id. at 5.
In his petition for review, Nche challenges the conclusion that he failed to
present sufficient reasonably available corroborating evidence. He also challenges
the weight and significance the IJ and BIA attached to the evidence he did submit. In
support of these arguments, Nche characterizes as conjectural and speculative the IJ
and BIA’s doubt as to his Anglophone ethnicity due to his speaking French and his
birthplace in a Francophone area of Cameroon. He also asserts that he testified
regarding his SCNC membership and political beliefs with greater specificity and
detail than the IJ and BIA described, that the BIA failed to afford sufficient weight to
the medical evidence he presented, and that the BIA ignored or mischaracterized the
reasons he could not obtain an affidavit or supporting statement from his mother or
brother.
In analyzing these arguments, we separately consider whether substantial
evidence supports (a) the BIA’s finding that Nche failed to submit reasonably
available corroborating evidence and (b) the BIA’s conclusion that the evidence Nche
did submit was insufficient to carry his burden to establish eligibility for asylum and
withholding of removal. As to the first issue, Nche’s arguments do not establish any
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reasonable adjudicator would be compelled to conclude additional corroborating
evidence was unavailable, so we will not reverse the IJ’s findings concerning the
availability of corroborating evidence. See 8 U.S.C. § 1252(b)(4) (“No court shall
reverse a determination made by a trier of fact with respect to the availability of
corroborating evidence . . . unless the court finds . . . that a reasonable trier of fact is
compelled to conclude that such corroborating evidence is unavailable.”).
Regarding the evidence Nche did present, including his own testimony and
that of his retained experts, “the administrative findings of fact are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary,” id.
§ 1252(b)(4)(B). Nche does not make this showing, at most establishing that a
reasonable adjudicator could have given more weight to his evidence than the BIA
did. Those findings are therefore conclusive, and the record on the whole provides
substantial support for the BIA’s determination that Nche was ineligible for asylum
and withholding of removal. See Elzour, 378 F.3d at 1150.
2. CAT Relief
“To be eligible for relief under the CAT, an individual must establish that it is
more likely than not that he or she would be tortured if removed to the proposed
country of removal.” Zhi Wei Pang, 665 F.3d at 1233–34 (internal quotation marks
omitted). Torture, by definition, must be “inflicted by, or at the instigation of, or
with the consent or acquiescence of, a public official acting in an official capacity or
other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). Nche argues
the BIA downplayed the severity of the three past incidents of torture he described in
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his testimony and did not afford sufficient weight to the documentary evidence he
submitted indicating international concern regarding torture in Cameroon from the
United Nations, the African Commission on Human and People’s Rights, and the
U.S. Department of State.
These arguments, though, do not overcome the high bar necessary to set aside
the BIA’s factual findings in a petition for review. The BIA concluded there was
insufficient basis to conclude Nche, individually, would likely face torture if he
returned to Cameroon. We cannot conclude any reasonable factfinder would be
compelled to reach the opposite finding, so we cannot set aside the agency’s findings.
CONCLUSION
We deny the petition for review. We grant Nche’s motion to proceed in forma
pauperis.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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