Case: 20-60997 Document: 00516496582 Page: 1 Date Filed: 10/04/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
October 4, 2022
No. 20-60997 Lyle W. Cayce
Clerk
Elmond Echaukian Ndifon,
Petitioner,
versus
Merrick Garland, U.S. Attorney General,
Respondent.
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A213 327 759
Before Clement, Duncan, and Wilson, Circuit Judges.
Stuart K. Duncan, Circuit Judge:
Elmond Echaukian Ndifon, a native and citizen of Cameroon,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
affirming the Immigration Judge’s (“IJ”) denial of his claim for protection
under the Convention Against Torture (“CAT”). Ndifon claims the BIA
failed to consider country conditions evidence when separately analyzing his
CAT claim. We agree. Consequently, we grant the petition for review and
remand for further consideration of the CAT claim.
Case: 20-60997 Document: 00516496582 Page: 2 Date Filed: 10/04/2022
No. 20-60997
I
Ndifon is a native and citizen of Cameroon who entered the United
States as an arriving alien on October 29, 2017. On November 18, 2019, the
Department of Homeland Security (“DHS”) served Ndifon with a Notice to
Appear, charging him as removable from the United States. Ndifon admitted
to removability on December 18, 2019, but requested relief in the form of
asylum, withholding of removal, and protection under CAT.
Ndifon appeared before an Immigration Judge (“IJ”) on February 27,
2020, to testify in support of his I-589 application. He testified that his status
as an Anglophone Cameroonian (i.e., an English speaker) and his
membership in the Southern Cameroon National Council—an organization
that advocates for the independence of Southern Cameroon—subjected him
to persecution in Cameroon. He claimed he left Cameroon because he feared
persecution and torture by the Cameroon military. Ndifon detailed three
alleged instances of abuse by Cameroonian military officials and testified that
if he were to return to Cameroon, his life would be at risk.
The IJ found Ndifon’s testimony inconsistent and implausible, so it
deemed him not credible and denied his asylum and withholding of removal
claims. Turning to the CAT claim, the IJ first found that Ndifon failed to
establish past torture. The IJ then specifically addressed the country
conditions articles and reports that Ndifon provided, which detail
mistreatment of Anglophones in Cameroon. However, the IJ also recognized
articles submitted by DHS suggesting the ruling government is taking steps
to resolve the Anglophone conflict. Accordingly, the IJ held that Ndifon
failed to establish by clear and convincing evidence that the Cameroonian
government would more likely than not torture him upon his return to
Cameroon or that he would suffer torture with the consent or acquiescence
of Cameroonian officials.
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The BIA determined the IJ’s adverse credibility findings were not
clearly erroneous and affirmed the denial of asylum and withholding of
removal. Turning to the CAT claim, the BIA “uph[e]ld the denial of the
respondent’s request for protection under [CAT] . . . because the
respondent’s claim . . . is based on the same testimony the [IJ] found not
credible, and the respondent points to no other objective evidence to support
his claim.” Ndifon petitioned for our review.
II
We review the BIA’s conclusions of law de novo. Mireles-Valdez v.
Ashcroft, 349 F.3d 213, 215 (5th Cir. 2003). We also review the BIA’s decision
“‘procedurally’ to ensure that the complaining alien has received full and fair
consideration of all circumstances that give rise to his or her claims.” Abdel-Masieh v. INS,
73 F.3d 579, 585 (5th Cir. 1996) (quoting Zamora-Garcia v.
INS,
737 F.2d 488, 490 (5th Cir. 1984)). Though the BIA is not required to
“address evidentiary minutiae or write any lengthy exegesis,” it must show
“meaningful consideration of the relevant substantial evidence supporting
the alien’s claims.”
Id. at 585. “If this court determines that the BIA applied
an inappropriate standard or neglected necessary findings, the court will
vacate the decision and remand to the BIA.” Ghotra v. Whitaker,
912 F.3d
284, 288 (5th Cir. 2019).
Ndifon does not contest the BIA’s adverse credibility findings or its
denial of asylum and withholding of removal. Rather, he asks this court to
vacate and remand because the BIA failed to consider the country conditions
evidence with respect to his CAT claim. Ndifon takes issue specifically with
the BIA’s statement that his CAT claim “is based on the same testimony the
[IJ] found not credible, and [Ndifon] points to no other objective evidence to
support his claim.” According to Ndifon, this statement shows the BIA erred
by failing to consider the country conditions evidence altogether.
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Our precedent teaches that CAT claims are “distinct from asylum and
withholding-of-removal claims and should receive separate analytical
attention.” Santos-Alvarado v. Barr, 967 F.3d 428, 436 (5th Cir. 2020)
(citation and quotation marks omitted); see also Efe v. Ashcroft,
293 F.3d 899,
907 (5th Cir. 2002) (discussing favorably Seventh and Ninth Circuit
Opinions cautioning against “overreliance on an adverse credibility ruling”
in the CAT context). Under CAT, an applicant is eligible for relief if he can
“establish that it is more likely than not that he . . . would be tortured if
removed to the proposed country of removal.”
8 C.F.R. § 1208.16(c)(2). The
applicable CAT regulation “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.” Arulnanthy v. Garland,
17
F.4th 586, 598 (5th Cir. 2021) (alterations in original) (quoting
8 C.F.R. §
1208.16(c)(3)). The regulation contains “no exception for cases of adverse
credibility determinations.”
Ibid. Accordingly, when an applicant “offer[s]
non-testimonial evidence that could independently establish his entitlement
to CAT relief,” an adverse credibility finding alone cannot defeat an
applicant’s eligibility for relief.
Ibid.
Here, Ndifon offered reports published by human-rights and news
organizations such as Human Rights Watch, Amnesty International, the
Washington Post, and Deutsche Welle purporting to show the Cameroonian
state tortures Anglophones. Ndifon argues that the BIA’s own statement
rejecting his CAT claim shows it failed to consider this non-testimonial
evidence that could independently establish his entitlement to CAT relief.
The key case here is our court’s recent decision in Arulnanthy. There,
the BIA noted the applicant’s reliance on general country conditions
evidence but refused to consider it because “the [IJ’s] adverse credibility
finding is dispositive and is fully supported by the record.” 17 F.4th at 591–
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92. We reversed the BIA’s decision and remanded the CAT petition because
“[t]he BIA’s decision did not even pretend to consider [the applicant’s]
country[ ]conditions evidence” in light of the adverse credibility finding. Id.
at 598. Arulnanthy thus holds that the BIA cannot ignore country conditions
evidence, even in light of an adverse credibility finding.
The BIA’s rejection of country conditions evidence in Arulnanthy was
plain, but since then our court has heard appeals that present closer calls. For
instance, in Emmanuel-Tata v. Garland, the BIA stated that the record “does
not contain any country conditions evidence indicating that Anglophones are
regularly subject to persecution,” and that “[t]he record does not contain
any country conditions evidence indicating the type of punishment the
respondent may face as a result of his criminal charges.” No. 20-60487, 2022
WL 126982, at *2 (5th Cir. January 12, 2022) (unpublished) (alteration in
original). That was inaccurate, however. The record contained the
applicant’s testimony about the Cameroonian government’s mistreatment of
Anglophones and affidavits from his wife, neighbor, and brother-in-law
related to violence against Anglophones. 1
Ibid. We concluded that “failure to
mention [country conditions evidence] raises too great a concern that the
BIA did not adequately consider the evidence before it” and remanded the
CAT petition to the BIA. Id. at *3.
On the other hand, in Melendez-Monge v. Garland, our court declined
to remand a similar CAT claim. No. 20-60814, 2022 WL 1532641 (5th Cir.
May 16, 2022) (unpublished). There, the IJ generally referenced the country
conditions articles as evidence that the court considered, but the BIA did not
explicitly mention the evidence in adopting the IJ’s decision and reasoning.
Id. at *2. We stated that our “concern that the BIA did not adequately
1
Emmanuel-Tata also concerned a CAT petition from a Cameroonian Anglophone.
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consider the evidence before it” was alleviated by the IJ’s statement that
“[t]he Court considered . . . respondent’s supporting documents . . .
including the El Salvador Human Rights Report.” Ibid. (omissions in
original) (citation omitted). We explained further that “the BIA is not
‘required to address every piece of evidence,’” but “is required to consider
‘key evidence.’” Ibid. (quoting Emmanuel-Tata, 2022 WL 126982, at *3).
Unlike Emmanuel-Tata, the BIA in Melendez-Monge did not deny the
existence of country conditions evidence—rather, the BIA didn’t mention
the evidence in adopting the IJ’s decision.
The facts here fall somewhere between Emmanuel-Tata and Melendez-Monge. 2 The BIA’s statement that Ndifon “points to no other objective
evidence to support his [CAT] claim” is analogous to the BIA’s statement in
Emmanuel-Tata that “the record does not contain any country conditions
evidence indicating that Anglophones are regularly subject to persecution.”
Emmanuel-Tata, 2022 WL 126982, at *2 (cleaned up). On the other hand,
the BIA here did not explicitly deny the existence of country conditions
evidence. Moreover, the IJ referred to the country conditions evidence in
denying CAT relief. That makes this case slightly different from Melendez-Monge, where the IJ only referred generally to country conditions evidence.
2022 WL 1532641, at *2.
We conclude that the BIA’s statement here “raises too great a
concern that the BIA did not adequately consider the evidence before it.”
Emmanuel-Tata, 2022 WL 126982, at *3. Ndifon plainly has pointed to other
evidence to support his CAT claim, i.e. the country conditions evidence. Cf.
Domingo-Torrez v. Garland, No. 20-61173,
2022 WL 2867164, at *1 (5th Cir.
July 21, 2022) (unpublished) (“[A]lthough an adverse credibility
2
Since both cases are unpublished, neither binds us, but both are instructive.
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determination is not necessarily dispositive of a CAT claim, Domingo-Torrez has pointed to ‘no independent, non-testimonial evidence going to
the likelihood of torture,’ and therefore the adverse credibility finding is also
decisive of her CAT claim.” (quoting Arulnanthy, 17 F.4th at 598)). Like the
statement in Emmanuel-Tata, the BIA here appears to deny the existence of
evidence that clearly exists in the record. Accordingly, we cannot ignore the
concerns raised by the BIA’s statement, and the fact that the IJ considered
country conditions evidence does not cure the BIA’s error. See Yahm v.
Garland, No. 20-60914,
2022 WL 1741620, at *1 (5th Cir. May 31, 2022)
(unpublished) (remanding the petition because the BIA “erred by not
considering [the country conditions evidence] in the context of his CAT
claim,” even though the IJ considered and rejected the same evidence).
Because the BIA incorrectly found no record evidence about relevant
country conditions, Ndifon did not receive “meaningful consideration of the
relevant substantial evidence supporting” his claims. Abdel-Masieh, 73 F.3d
at 585; see also Noumbissi v. Garland, No. 21-60012,
2022 WL 1744787, at *2
(5th Cir. May 31, 2022) (unpublished) (“There is no indication in the record
that the BIA took [country conditions] evidence into account in deciding
Noumbissi’s CAT claim, and the failure to do so was error.”). We therefore
reverse the BIA’s decision.
III
We GRANT the petition for review and REMAND for further
consideration of Ndifon’s CAT claim. We express no opinion on the merits
of that claim.
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