Gustave Yen Nyemb v. Eric Holder, Jr.

Filing 920101220


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Case: 10-60010 Document: 00511325411 Page: 1 Date Filed: 12/17/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 10-60010 S u m m a r y Calendar December 17, 2010 Lyle W. Cayce Clerk G U S T A V E LE GRAND FILS YEN NYEMB, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A088 824 200 B e fo r e REAVLEY, DENNIS, and CLEMENT, Circuit Judges. P E R CURIAM:* G u s t a v e Le Grand Fils Yen Nyemb, a native and citizen of Cameroon, has p e t it io n e d for review of the order of the Board of Immigration Appeals (BIA) d is m i s s in g his appeal from the denial of his application for asylum.1 Nyemb c o n t e n d s that the BIA erred in affirming the Immigration Judge's (IJ) adverse Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Nyemb raises no issue with respect to the BIA's dismissal of his appeal from the denial of his requests for withholding of removal and for relief under the Convention Against Torture. Therefore, any issue that might have been raised with respect to those determinations has been waived. See Singh v. Holder, 568 F.3d 525, 529 (5th Cir. 2009). 1 * Case: 10-60010 Document: 00511325411 Page: 2 Date Filed: 12/17/2010 No. 10-60010 c r e d ib ilit y finding and in affirming the IJ's determination that Nyemb had failed t o provide reasonably available corroborating documentation. T h is court generally reviews only the BIA's decision except to the extent t h a t the IJ's decision influences the BIA. Mikhael v. INS, 115 F.3d 299, 302 (5th C ir . 1997). The substantial evidence standard test is applied in reviewing fa c t u a l findings in immigration proceedings. Chen v. Gonzales, 470 F.3d 1131, 1 1 3 4 (5th Cir. 2006). Under that standard, "The applicant has the burden of s h o w in g that the evidence is so compelling that no reasonable factfinder could r e a c h a contrary conclusion." Id. N y e m b filed his application after the effective date of the REAL ID Act of 2 0 0 5 , which amended the standards for assessing credibility.2 See Wang v. H o ld e r , 569 F.3d 531, 537 (5th Cir. 2009). Under the REAL Act, "[a]n applicant's t e s t im o n y , alone, may be sufficient to sustain the burden of proving eligibility fo r asylum, `but only if the applicant satisfies the trier of fact that [his] t e s t im o n y is credible, is persuasive, and refers to specific facts sufficient to d e m o n s t r a t e that the applicant is a refugee.'" Id. (quoting 8 U.S.C. 1158(b)(1)(B)(ii)). The IJ may consider the "totality of the circumstances" and " a ll relevant factors" in making a credibility determination. 1158(b)(1)(B)(iii). An applicant's credibility is not presumed. Id. T h u s , "`an IJ may rely on any inconsistency or omission in making an a d v e r s e credibility determination as long as the totality of the circumstances e s t a b lis h e s that an asylum applicant is not credible.'" Wang, 569 F.3d at 538-39. This court will defer "`to an IJ's credibility determination unless, from the t o t a lit y of the circumstances, it is plain that no reasonable fact-finder could m a k e such an adverse credibility ruling.'" Id. In making a credibility finding, t h e IJ is not required to consider only inconsistencies, inaccuracies, and Two cases relied upon by Nyemb, Koulibaly v. Mukasey, 541 F.3d 613 (6th Cir. 2008), and Singh v. Gonzales, 403 F.3d 1081, 1089-90 (9th Cir. 2005), were not governed by the REAL ID Act. See Koulibaly, 541 F.3d at 620 n.2. 2 2 Case: 10-60010 Document: 00511325411 Page: 3 Date Filed: 12/17/2010 No. 10-60010 fa ls e h o o d s that go to the heart of an applicant's claim, as details at the periphery o f the applicant's story "`may expose a liar.'" Id. at 537 & 539 (citation omitted). T h e IJ's adverse credibility finding was based on discrepancies between N y e m b 's testimony and statements made to the asylum officer and in his written d e c la r a tio n with respect to (1) injuries suffered during a 2003 detention, (2) the n u m b e r of times Nyemb was detained in 2003, and (3) facts related to Nyemb's r e le a s e from detention in 2003. Nyemb has not shown that, under the totality o f the circumstances, no reasonable factfinder could have made an adverse c r e d ib ilit y ruling based on these discrepancies. See Wang, 569 F.3d at 538-39. The documents submitted by Nyemb in support of his asylum application d id not sufficiently corroborate his testimony.3 See id. at 537. The BIA did not e r r in concluding that the IJ had not erred in determining that additional c o r r o b o r a t iv e evidence, establishing a nexus between the 2003 detention and a fir e at Nyemb's residence and his political activities, was reasonably available a n d should have been produced. See 1158(b)(1)(B)(ii). Because the BIA's d e c is io n dismissing Nyemb's appeal from the IJ's decision denying Nyemb's a s y lu m application is supported by substantial evidence, see Chen, 470 F.3d at 1 1 3 4 , the petition is DENIED. In reaching this conclusion, we note that many of the documents submitted by Nyemb were not translated. See 8 C.F.R. 1003.33 (foreign language documents must be translated into English and must be accompanied by translator's certificate); Li v. Holder, 342 F. App'x 55, 57 (5th Cir. 2009) (holding that the IJ was justified in excluding foreign language documents that were not translated). 3 3

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