Akam v. Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSEPH FONCHAM AKAM, No. 22-460 Agency No. Petitioner, A203-680-639 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted May 8, 2023 San Francisco, California Before: FRIEDLAND and BENNETT, Circuit Judges, and BENNETT, Senior District Judge.** Dissent by Judge BENNETT, Circuit Judge. Petitioner Joseph Foncham Akam (“Akam”), a native and citizen of Cameroon, applied for asylum, alleging that he was persecuted by the Cameroonian military for protesting the marginalization of Anglophonic Southern Cameroonians. He challenges a decision of the Board of Immigration Appeals (“BIA”) affirming an adverse credibility finding entered by an * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Richard D. Bennett, United States Senior District Judge for the District of Maryland, sitting by designation. Immigration Judge (“IJ”) and denying relief on that basis. We have jurisdiction pursuant to 8 U.S.C. § 1252. Reviewing for substantial evidence, Singh v. Ashcroft, 362 F.3d 1164, 1168 (9th Cir. 2004), we grant the petition and remand for a new credibility determination on an open record. Akam’s asylum claim arises from two alleged incidents of political persecution at the hands of the Cameroonian military. First, Akam testified that in September 2017, the military detained, starved, and beat him for participating in a large-scale separatist demonstration in the city of Bamenda. Second, Akam testified that in May 2019, soldiers murdered his cousin, believing the cousin to be Akam, because Akam closed his convenience store on a day of solidarity declared by the separatist movement. An Immigration Judge must consider “the totality of the circumstances, and all relevant factors” when evaluating an applicant’s credibility. 8 U.S.C. § 1158(b)(1)(B)(iii). Although an IJ has substantial latitude to make credibility findings, the IJ must “provide specific and cogent reasons in support of an adverse credibility determination.” Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010) (quoting Malkandi v. Holder, 576 F.3d 909, 917 (9th Cir. 2009)). “For each factor forming the basis of an adverse credibility determination, the IJ should refer to specific instances in the record that support a conclusion that the factor undermines credibility.” Id. at 1044. The IJ “must consider the petitioner’s explanation for any inconsistency that is ‘cited as a factor supporting an adverse credibility determination,’” Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir. 2014) 2 22-460 (quoting Shrestha, 590 F.3d at 1044), and must evaluate “other record evidence that sheds light on whether there is in fact an inconsistency at all,” Shrestha, 590 F.3d at 1044. The IJ cannot rest an adverse credibility finding on “[t]rivial inconsistencies that under the total circumstances have no bearing on a petitioner’s veracity,” id., or on “speculation and conjecture.” Lalayan v. Garland, 4 F.4th 822, 833 (9th Cir. 2021) (citation omitted). The …

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