NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 26 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FIDELIS NKENGANYI, No. 21-70184 Petitioner, Agency No. A213-187-006 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted October 19, 2022 Portland, Oregon Before: BADE and SANCHEZ, Circuit Judges, and LEFKOW,** District Judge. Partial Concurrence and Partial Dissent by Judge BADE. Fidelis Nkenganyi, a native and citizen of Cameroon, seeks review of a decision by the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ) denial of 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 Honorable Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we grant the petition in part and deny it in part. We review the “factual findings underlying the BIA’s determination that a petitioner is not eligible for asylum, withholding of removal, or CAT relief” for substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). The agency’s determination is not supported by substantial evidence if the record compels a contrary conclusion. Id. Where, as here, the BIA’s decision “relies in part on the immigration judge’s reasoning, we review both decisions.” Flores- Lopez v. Holder, 685 F.3d 857, 861 (9th Cir. 2012). 1. Substantial evidence supports the agency’s denial of asylum and withholding of removal on adverse credibility grounds. The IJ must provide “specific and cogent reasons” for an adverse credibility determination, Shrestha v. Holder, 590 F.3d 1034, 1042 (9th Cir. 2010), considering the “totality of the circumstances and all relevant factors,” Iman v. Barr, 972 F.3d 1058, 1067 (9th Cir. 2020). “Such factors include . . . an applicant’s ‘demeanor, candor, or responsiveness’ as well as the consistency between an applicant’s statements and other evidence in the record.” Id. at 1065 (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). The IJ found Nkenganyi not credible based on a lack of candor and fourteen separate inconsistencies within his testimony and between his testimony and the record evidence. The IJ properly considered Nkenganyi’s “explanation[s] for [the] 2 perceived inconsistenc[ies],” Shrestha, 590 F.3d at 1044, and provided “specific and cogent reasons supporting” her determination, id. at 1042. On appeal, the BIA affirmed the IJ’s adverse credibility determination “[b]ased on the significant inconsistencies in the record and the unpersuasive explanations for those discrepancies.” The agency’s denial of asylum and withholding of removal on adverse credibility grounds is supported by substantial evidence because the record does not compel a contrary conclusion. Thus, the petition is denied with respect to the asylum and withholding of removal claims. 2. Substantial evidence does not support the agency’s denial of CAT protection. An applicant for CAT relief bears the burden of proving that …
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