Roseline Ngwe v. Merrick Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 7 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ROSELINE CHOH NGWE, No. 20-72586 Petitioner, Agency No. A201-759-541 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 5, 2021** Anchorage, Alaska Submission Vacated August 17, 2021 Resubmitted October 5, 2021 Before: WARDLAW, MILLER, and BADE, Circuit Judges. Roseline Choh Ngwe petitions for review of the Board of Immigration Appeals’ (BIA) decision affirming an Immigration Judge’s (IJ) denial of her application for asylum, withholding of removal, and protection under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition in part and dismiss it in part. 1. Ngwe argues that the agency failed to adequately consider two pieces of evidence—a bail bond application and a bail bond—which she argues corroborate her account of persecution and compel a finding of past persecution. But Ngwe did not raise this argument before the BIA. Moreover, the statements in her briefing to the BIA that the “IJ erred while considering the facts,” and failed to evaluate other evidence of record were not sufficient to put the BIA on notice that she was challenging the IJ’s treatment of her corroborating evidence. See Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir. 2010) (finding “broad statements” insufficient to put the BIA on notice of a petitioner’s claim). Because this issue is unexhausted, we lack jurisdiction to reach it. See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam). 2. Ngwe argues that the agency’s adverse credibility determination was unsupported by substantial evidence. We disagree. When evaluating an adverse credibility finding, “we must look to the ‘totality of the circumstances[ ] and all relevant factors.’” Alam v. Garland, — F.4th —, 2021 WL 4075331, at *5 (9th Cir. Sept. 8, 2021) (en banc) (alteration in original) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)) (overruling former precedents that “employed the single factor rule”). There were significant inconsistencies in Ngwe’s testimony about 2 her stay at a friend’s house after escaping from prison and about an anonymous note she received, and this testimony concerned the core details of her alleged persecution. See Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010) (“Although inconsistencies no longer need to go the heart of the petitioner’s claim [to support an adverse credibility finding], when an inconsistency is at the heart of the claim it doubtless is of great weight.”). Moreover, the record does not compel the conclusion that these inconsistencies were the result of a misunderstanding between Ngwe and the IJ, particularly given that Ngwe is highly educated and a native English speaker, …

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