Mildred Akinyi Ondiek v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Mildred Akinyi Ondiek,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 22-224
Agency No. A216-530-186
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 21, 2023
Portland, Oregon
Before: RAWLINSON, BEA, and SUNG, Circuit Judges.
Mildred Akinyi Ondiek petitions for review of the Board of Immigration
Appeals’ (“BIA”) dismissal of her appeal of the Immigration Judge’s (“IJ”)
final order of removal. We have jurisdiction, see 8 U.S.C. § 1252, and we deny
the petition.
1. Considering the totality of the circumstances, see Alam v. Garland,
11 F.4th 1133, 1134 (9th Cir. 2021) (en banc), Ondiek’s admitted falsehood and
vague testimony together provide substantial evidence to support the IJ’s
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 16 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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adverse credibility finding.
Ondiek told the asylum officer that she completed her first asylum
application herself, but she later affied and testified that she had received
assistance and that she knowingly lied to agency officials because a person
purporting to be an attorney told her to do so. While an alien’s past lies may not
always constitute substantial evidence in support of an adverse credibility
finding, see Li v. Garland, 13 F.4th 954, 961 (9th Cir. 2021), the circumstances
of this case differ from those instances in which we have held that an alien’s
false statements did not undermine his credibility. See Singh v. Holder, 638 F.3d
1264, 1271 (9th Cir. 2011) (explaining that false statements used to flee
persecution generally do not undermine credibility). Ondiek’s misrepresentation
is therefore probative of a lack of veracity. See Li, 13 F.4th at 959–60.
The IJ also based his adverse credibility finding on Ondiek’s “inability to
clearly describe [Orange Democratic Movement (ODM)] political policies and
it’s [sic] platform, aside from generic statements . . . .” It was error for the IJ to
ignore potential cultural differences between American and Kenyan politics and
assume that ODM must have political platforms beyond tribal affiliations and
electoral reform. See Lalayan v. Garland, 4 F.4th 822, 835, 837 (9th Cir. 2021)
(“[W]hat seems like common sense to an IJ might be rooted in significant
differences between the IJ’s and witness’s cultural backgrounds and systems.”).
But even assuming that ODM lacked platforms beyond those mentioned,
Ondiek mentioned them only occasionally and indirectly; when asked directly

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about her political beliefs, Ondiek generally recited superficial and generalized
political slogans. See id. at 837–38 (affirming adverse credibility determination
because “the IJ was careful not to” make cultural assumptions and instead
observed that the alien’s explanation was unpersuasive and implausible).
Substantial evidence supports that IJ’s determination that Ondiek’s answers
lacked sufficient specificity given her claimed decade of involvement with the
party and leadership role.
2. The record does not compel the conclusion that Ondiek will more
likely than not be tortured with the acquiescence of government officials if
removed to Kenya, as is required to obtain relief under the Convention Against
Torture. See Garcia-Milian v. Holder, 755 F.3d 1026, 1033–34 (9th Cir. 2014).
3. We decline to remand for adjustment of status because Ondiek
concedes she is no longer eligible. Ondiek’s motion to supplement the record
with a document advising the Court of that concession, see Dkt. No. 29, is
granted.
PETITION DENIED.

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