Aaron Ottop Akwo v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AARON OTTOP AKWO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71120
Agency No. A201-742-902
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2021**
Seattle, Washington
Before: BEA, BRESS, and VANDYKE, Circuit Judges.
Aaron Ottop Akwo, a Cameroon citizen, petitions for review of a Board of
Immigration Appeals (BIA) decision dismissing his appeal of an Immigration Judge
(IJ) order denying his requests for asylum, withholding of removal, and relief under
the Convention Against Torture (CAT). We review for substantial evidence and
* 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).
FILED
AUG 18 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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may grant relief only if the record compels a contrary conclusion. Wang v. Sessions,
861 F.3d 1003, 1007 (9th Cir. 2017). Adverse credibility determinations are
reviewed under the same standard. See id. We have jurisdiction under 8 U.S.C.
§ 1252. We deny the petition.
1. Substantial evidence supports the IJ’s finding that Akwo was not
credible. “[A]n adverse credibility determination must be made after considering
‘the totality of circumstances, and all relevant factors.’” Shrestha v. Holder, 590
F.3d 1034, 1040 (9th Cir. 2010) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). In assessing
Akwo’s credibility, the IJ could thus consider the consistency between Akwo’s
testimony and “other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii).
The IJ identified three inconsistencies between Akwo’s testimony and his
nonimmigrant visa application, and substantial evidence supports each finding.
First, Akwo’s testimony and his application for asylum and withholding of removal
conflicted with his visa application about whether he lived in Gabon instead of
Cameroon, which raised obvious questions as to how he could have been harmed in
Cameroon as he claimed. Second, Akwo’s testimony featured inconsistencies as to
how much time he spent in Gabon. And third, Akwo admitted during cross-
examination that before his most recent visa application he had unsuccessfully
applied three times for a nonimmigrant visa, yet he had previously claimed that he
had never been denied a visa. These inconsistencies were material to Akwo’s claims

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and supported the IJ’s adverse credibility determination. See Shrestha, 590 F.3d at
1043–44.
The IJ also found that Akwo’s demeanor during his testimony undercut his
credibility. Substantial evidence supports that finding as well, which lends further
support to the IJ’s overall adverse credibility determination. We typically “give
special deference to a credibility determination that is based on demeanor.” Singh-
Kaur v. INS, 183 F.3d 1147, 1151 (9th Cir. 1999) (quotation marks and citation
omitted). That deference is appropriate here because the IJ noted specific, non-
verbal reasons for the demeanor finding such as Akwo not responding to a question
“at first” and then “after a lengthy pause” stating he did not know the answer. Akwo
also gave “contradictory and nonresponsive answers” when “confronted with the
inconsistent statements contained in the visa application.” See Jin v. Holder, 748
F.3d 959, 965 (9th Cir. 2014) (substantial evidence supported adverse credibility
finding based on demeanor during testimony because “the record amply
demonstrates a pattern of evasive responses”).
2. Substantial evidence supports the denial of asylum and withholding of
removal. To qualify for asylum, Akwo must show either that he (1) suffered past
persecution (which creates a rebuttable presumption of eligibility); or (2) has a well-
founded fear of future persecution in Cameroon because of a protected ground.
Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).

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Without credible testimony, Akwo failed to show past persecution or a well-
founded fear of persecution. The only other admitted evidence offered to support
Akwo’s claim was the 2018 Department of State report for Cameroon. But that
report does not show either that (1) Akwo has an individualized risk of persecution;
or (2) “there is a systematic pattern or practice of persecution against the group to
which he belongs in his home country.” Wakkary v. Holder, 558 F.3d 1049, 1060
(9th Cir. 2009) (quotation marks and citation omitted).
Because Akwo “fail[ed] to satisfy the lower standard of proof required to
establish eligibility for asylum,” he “necessarily . . . fail[ed] to demonstrate
eligibility for withholding of deportation.” Guo v. Sessions, 897 F.3d 1208, 1213
n.3 (9th Cir. 2018) (citation omitted).1
3. Substantial evidence supports the IJ and BIA’s decision to deny CAT
relief. To obtain CAT relief, Akwo must prove that government officials or private
actors with government consent or acquiescence would “more likely than not”
torture him after he returns to Cameroon. Garcia-Milian v. Holder, 755 F.3d 1026,
1033 (9th Cir. 2014) (citation omitted). “An adverse credibility determination is not
1 We lack jurisdiction to consider Akwo’s unexhausted claim that the IJ failed
to provide him an opportunity to explain the inconsistencies between his testimony
and his nonimmigrant visa application. See 8 U.S.C. § 1252(d)(1); Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). But even if Akwo had raised this
argument to the BIA, it would lack merit. Akwo had various opportunities to explain
the inconsistencies.

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necessarily a death knell to CAT protection.” Shrestha, 590 F.3d at 1048. But when
“the CAT [claim] is based on the same statements [the petitioner] made regarding
his claims for asylum and withholding of removal[,] . . . . it [is] proper for the IJ and
the BIA to rely on the same adverse credibility determination in denying all of his
claims.” Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015). That is the case here.
Besides his non-credible testimony, Akwo points only to the same country
conditions report that failed to show a well-founded fear of persecution. Because
torture “is more severe than persecution,” Akwo’s CAT claim necessarily fails.
Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir. 2005). Akwo’s assertion that the
IJ and BIA failed to consider the evidence also finds no support in the record.
PETITION DENIED.

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