Lewis Abdul Kalim Sibomana v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LEWIS ABDUL KALIM SIBOMANA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-809
Agency No.
A200-179-618
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2024**
Pasadena, California
Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.
Petitioner seeks review of the Board of Immigration Appeals’ (BIA) decision
dismissing his appeal of the denial by an Immigration Judge (IJ) of asylum,
withholding of removal, and Convention Against Torture (CAT) relief. We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
* 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
APR 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Where, as here, the BIA agrees with the IJ and adds its own reasoning, this
court reviews both decisions. See Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir.
2021). Due process violations are reviewed de novo. Benedicto v. Garland, 12 F.4th
1049, 1058 (9th Cir. 2021). This court reviews factual findings, including adverse
credibility determinations, for substantial evidence. Shrestha v. Holder, 590 F.3d
1034, 1039 (9th Cir. 2010). This means that administrative findings of fact are
deemed conclusive “unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see Shrestha, 590 F.3d at 1039.
Meanwhile, legal questions are reviewed de novo, see Shrestha, 590 F.3d at 1048,
and Petitioner bears the burden of proving he is eligible for CAT deferral, see 8
C.F.R. §§ 1208.16(c)(2), 1208.17(d)(3); 8 U.S.C. § 1229a(c)(4)(A).
1. The BIA did not err in concluding that the incomplete transcript was not a
due process violation. To “obtain relief … [Petitioner must] show[] that the violation
caused him prejudice, meaning the violation potentially affected the outcome of the
immigration proceeding.” Gomez-Velazco v. Sessions, 879 F.3d 989, 993 (9th Cir.
2018). Petitioner has not identified any specific instance of testimony where the
transcription error affected the agency decision, and he has thus failed to establish
that any error has prejudiced him. See Mukulumbutu v. Barr, 977 F.3d 924, 928 (9th
Cir. 2020). The BIA therefore did not err in concluding that Petitioner’s due process
rights were not violated.

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2. The IJ’s adverse credibility determination is supported by substantial
evidence. We must accept administrative findings—such as the adverse credibility
determination—as “conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Garland
v. Ming Dai, 593 U.S. 357, 365 (2021). Here, the agency relied on four reasons to
reasonably conclude that Petitioner was not credible, and each is supported by the
record.
First, the background evidence regarding Victoire Ingabire’s imprisonment
supports the IJ’s conclusion that it was implausible for Petitioner to visit her in
prison. See Lalayan v. Garland, 4 F.4th 822, 833 (9th Cir. 2021). Given Petitioner’s
extensive political activities, it was not unreasonable for the IJ to find it implausible
that he and a group of other political activists were allowed to visit Ingabire only
days after a different group of activists had been turned away. Second, the
improbability of Petitioner’s 29-year-old uncle having a 26-year-old daughter at the
time of Petitioner’s escape from Rwanda, Petitioner’s demeanor in his explanation
that she was his uncle’s stepdaughter, and the discrepancies between the signatures
on the letter from his uncle and his uncle’s ID card, when taken as a whole, support
the IJ’s conclusion that Petitioner’s story regarding his departure from Rwanda was
not credible. 8 U.S.C. § 1158(b)(1)(B)(iii). Third, Petitioner embellished his injuries
before the IJ, stating for the first time that his “skull was cracked” and he “had a

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broken bone in [his] back.” This embellishment, added “only after [Petitioner’s]
unsuccessful appearance before the asylum officer,” Zamanov v. Holder, 649 F.3d
969, 974 (9th Cir. 2011), further supported the adverse credibility determination, see
Iman v. Barr, 972 F.3d 1058, 1068 (9th Cir. 2020) (stating that previously omitted
facts “are probative of credibility to the extent that later disclosures, if credited,
would bolster an earlier, and typically weaker, asylum application”). Finally,
Petitioner made inconsistent statements regarding whether Ingabire’s lawyer, Peter
Erlinder, was present at Petitioner’s meeting with Ingabire. Petitioner claimed
before the asylum officer that Erlinder had been present, but later stated that Erlinder
was not present and that he never said he was. The IJ considered all of the facts and
circumstances and concluded that these four issues supported an adverse credibility
determination. Because the record does not compel us to conclude otherwise, the
determination is supported by substantial evidence.
3. Petitioner failed to present independent evidence establishing his CAT
deferral eligibility. The letters submitted by Petitioner either (1) were “derived from
[his] own assertions,” and therefore undermined by his adverse credibility
determination and could not constitute “independent” evidence that he was subject
to torture in Rwanda, Garcia v. Holder, 749 F.3d 785, 792 (9th Cir. 2014), or (2) fail
to allege first-hand accounts of continued interest in Petitioner by Rwandan police.
The photographs and medical certificate submitted by Petitioner fail to corroborate

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many of his serious injuries. Finally, the police summons submitted by Petitioner
says nothing about why the police were summoning him. Ultimately, Petitioner has
failed to show that his non-testimonial evidence compels the conclusion that he will
more likely than not be tortured upon return to Rwanda. Shrestha, 590 F.3d at 1048–
49.
4. The agency was not required to allow Petitioner to submit additional
corroborative evidence. Where a petitioner’s testimony is “otherwise credible,” but
the “IJ determines that additional corroborative evidence should have been
submitted, the IJ must give an applicant notice of what evidence would suffice and
an opportunity to provide the evidence or explain why he cannot reasonably obtain
it.” Bhattarai v. Lynch, 835 F.3d 1037, 1043 (9th Cir. 2016). But when the IJ finds
a petitioner’s “testimony not credible, the IJ [is] not required to give [the petitioner]
notice and an opportunity to provide additional corroborating evidence.”
Mukulumbutu, 977 F.3d at 927; see also Yali Wang v. Sessons, 861 F.3d 1003, 1009
(9th Cir. 2017) (concluding that the notice and opportunity requirement did not apply
because the petitioner “did not satisfy the IJ that her testimony is credible, is
persuasive, and refers to specific facts sufficient to demonstrate that she is a refugee”
(cleaned up)). As discussed above, substantial evidence supports the adverse
credibility determination and so the IJ was not required to give Petitioner notice and

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an opportunity to provide additional corroborating evidence. Rodriguez-Ramirez v.
Garland, 11 F.4th 1091, 1094 (9th Cir. 2021) (per curiam).
PETITION DENIED.1
1 The pending motion to stay removal (Dkt. 2) and supplemental motion to stay
removal (Dkt. 11) are denied as moot.

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