NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 18 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT CHRISTOPHER NDIAGU, No. 19-72504 Petitioner, Agency No. A093-456-688 v. MEMORANDUM * MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted March 9, 2022 Pasadena, California Before: BERZON, TALLMAN, and FRIEDLAND, Circuit Judges. Partial Concurrence and Partial Dissent by Judge TALLMAN. Christopher Ndiagu (“Petitioner”), a native of Nigeria, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) upholding the immigration judge’s (“IJ”) denial of his claims for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We grant the petition in part, deny it in part, * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. and remand for proceedings consistent with this disposition. 1. Substantial evidence supports the BIA’s decision to sustain the removability charge in the Notice to Appear, which alleged that Petitioner is “[a]n alien present in the United States without being admitted or paroled,” 8 U.S.C. § 1182(a)(6)(A)(i). Petitioner alleged that he was waved through a port of entry upon return from a road trip to Canada in 1986, when he was ten years old. See Saldivar v. Sessions, 877 F.3d 812, 814-815 (9th Cir. 2017) (noting that a wave- through is a procedurally lawful admission). The BIA upheld the IJ’s determination that Petitioner’s evidence was unpersuasive because it included factual inconsistencies and provided insufficient detail about or corroborating evidence of the trip. The record does not compel a contrary conclusion. Petitioner’s evidence inconsistently described the length of the trip to Canada and the number of cousins who accompanied him. The IJ was entitled to rely on these inconsistencies as a reason to discount the evidence. The IJ also reasonably concluded that the barebones allegations in the declarations detracted from the plausibility of Petitioner’s story, especially without other evidence of the wedding itself. In the alternative, Petitioner argues that the IJ violated his due process rights by scheduling a removability hearing on a date when his cousin—who might have testified about the wave-through admission—could not attend. We disagree. 2 Although Petitioner explained that his cousin would likely be traveling abroad on the hearing date and repeatedly asked for an earlier hearing, the IJ responded that no earlier date was available. Petitioner did not say when his cousin would return, and he never suggested that a later date would work. Under the circumstances, the IJ’s failure to accommodate the cousin’s travel schedule did not violate due process. To be sure, an IJ’s failure to permit testimony at all can violate due process. See, e.g., Zolotukhin v. Gonzales, 417 F.3d 1073, 1075-76 (9th Cir. 2005). But here, Petitioner had an adequate opportunity to present witness testimony and documentary evidence rebutting the removability charge. 2. We agree with …
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