Sylvester Atemnkeng v. MERRICK GARLAND, Attorney General

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SYLVESTER ATEMNKENG,
Petitioner,
v.
MERRICK GARLAND, Attorney General,
Respondent.
No. 18-70663
BIA A213–077–482
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2022 **
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,*** District Judge.
Sylvester Atemnkeng, a native and citizen of Cameroon, petitions for
review of a decision of the Board of Immigration Appeals (“BIA”) dismissing
Atemnkeng’s appeal of an order by an Immigration Judge (“IJ”) denying asylum,
* 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).
*** The Honorable Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
DEC 5 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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withholding of removal, and protection under the Convention Against Torture
(“CAT”). Although the IJ determined Atemnkeng was credible, the IJ denied his
application on the grounds that Atemnkeng failed to establish that his two arrests
by the Cameroonian police rose to the level of persecution or were “on account of”
a protected ground; rather, the IJ found Atemnkeng was the subject of an arson
investigation. CAT relief was denied on similar grounds. The BIA affirmed,
concluding that even if his treatment rose to the level of persecution, Atemnkeng
failed to show a nexus to a protected ground. He petitions for review of that
decision, arguing for the first time on appeal that the agency lacked jurisdiction
due to a defective Notice to Appear (“NTA”). We have jurisdiction under 8 U.S.C.
§ 1252 and deny the petition for review.
1. Atemnkeng first argues that the agency lacked jurisdiction over his
removal proceedings under Pereira v. Sessions, 138 S. Ct. 2105 (2018), because
his NTA did not specify the time or place of his first hearing before the IJ. This
challenge is unexhausted. See 8 U.S.C. § 1252(d)(1) (“A court may review a final
order of removal only if . . . the alien has exhausted all administrative remedies
available to the alien as of right[.]”); Ruiz-Colmenares v. Garland, 25 F.4th 742,
748 (9th Cir. 2022) (“We lack jurisdiction to consider Petitioner’s argument
because it was not raised before the agency.”). Moreover, we have specifically
held that a defective NTA does not divest the immigration court of jurisdiction

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where, as here, the noncitizen receives the information in later hearing notices.
Karingithi v. Whitaker, 913 F.3d 1158, 1162 (9th Cir. 2019); see also United States
v. Bastide-Hernandez, 39 F.4th 1187, 1193–94 (9th Cir. 2022) (en banc).
2. Substantial evidence supports the BIA’s decision that Atemnkeng failed
to show a nexus between any past or future harm and a protected ground.
Although Cameroonian police may have believed that Atemnkeng was affiliated
with the Southern Cameroon National Council (“SCNC”)—a political organization
that advocates for English-speaking Cameroonians, the record does not compel the
conclusion that he “was targeted on account of that opinion.” Khudaverdyan v.
Holder, 778 F.3d 1101, 1106 (9th Cir. 2015) (internal quotation marks omitted).
Atemnkeng himself repeatedly stated that his arrests were related to a fire
investigation, and he testified that a witness identified him near the building on the
evening it was burned. While police may have suspected SCNC involvement in
the same incident, the record does not compel the conclusion that the police sought
Atemnkeng for reasons other than investigation of the fire. “Ordinary prosecution
for criminal activity is not persecution ‘on account of’ a protected ground.” Lin v.
Holder, 610 F.3d 1093, 1097 (9th Cir. 2010). Nor does Atemnkeng provide any
evidence beyond country-wide discord that he was mistreated because he is an
English-speaker. See Hussain v. Rosen, 985 F.3d 634, 646 (9th Cir. 2021) (“[A]n
applicant must show he was individually targeted on account of a protected ground

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rather than simply the victim of generalized violence.”). Because Atemnkeng’s
protected characteristics were not a reason, Barajas-Romero v. Lynch, 846 F.3d
351, 360 (9th Cir. 2017), let alone “one central reason” for his persecution,
Khudaverdyan, 778 F.3d at 1106 (quoting 8 U.S.C. § 1158(b)(1)(B)(i)), he did not
meet his burden to establish eligibility for either asylum or withholding of removal.
3. Substantial evidence also supports the BIA’s denial of CAT protection.
While SCNC members and English-speaking Cameroonians have been arrested,
detained, and harassed and the State Department report shows harsh prison
conditions and some incidents of torture, the record does not compel the
conclusion that it is more likely than not that Atemnkeng will be subjected to
torture if returned to Cameroon.
PETITION DENIED.

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