Ndifon v. Garland

Case: 20-60997 Document: 00516496582 Page: 1 Date Filed: 10/04/2022 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED October 4, 2022 No. 20-60997 Lyle W. Cayce Clerk Elmond Echaukian Ndifon, Petitioner, versus Merrick Garland, U.S. Attorney General, Respondent. Petition for Review of an Order of the Board of Immigration Appeals BIA No. A213 327 759 Before Clement, Duncan, and Wilson, Circuit Judges. Stuart K. Duncan, Circuit Judge: Elmond Echaukian Ndifon, a native and citizen of Cameroon, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of his claim for protection under the Convention Against Torture (“CAT”). Ndifon claims the BIA failed to consider country conditions evidence when separately analyzing his CAT claim. We agree. Consequently, we grant the petition for review and remand for further consideration of the CAT claim. Case: 20-60997 Document: 00516496582 Page: 2 Date Filed: 10/04/2022 No. 20-60997 I Ndifon is a native and citizen of Cameroon who entered the United States as an arriving alien on October 29, 2017. On November 18, 2019, the Department of Homeland Security (“DHS”) served Ndifon with a Notice to Appear, charging him as removable from the United States. Ndifon admitted to removability on December 18, 2019, but requested relief in the form of asylum, withholding of removal, and protection under CAT. Ndifon appeared before an Immigration Judge (“IJ”) on February 27, 2020, to testify in support of his I-589 application. He testified that his status as an Anglophone Cameroonian (i.e., an English speaker) and his membership in the Southern Cameroon National Council—an organization that advocates for the independence of Southern Cameroon—subjected him to persecution in Cameroon. He claimed he left Cameroon because he feared persecution and torture by the Cameroon military. Ndifon detailed three alleged instances of abuse by Cameroonian military officials and testified that if he were to return to Cameroon, his life would be at risk. The IJ found Ndifon’s testimony inconsistent and implausible, so it deemed him not credible and denied his asylum and withholding of removal claims. Turning to the CAT claim, the IJ first found that Ndifon failed to establish past torture. The IJ then specifically addressed the country conditions articles and reports that Ndifon provided, which detail mistreatment of Anglophones in Cameroon. However, the IJ also recognized articles submitted by DHS suggesting the ruling government is taking steps to resolve the Anglophone conflict. Accordingly, the IJ held that Ndifon failed to establish by clear and convincing evidence that the Cameroonian government would more likely than not torture him upon his return to Cameroon or that he would suffer torture with the consent or acquiescence of Cameroonian officials. 2 Case: 20-60997 Document: 00516496582 Page: 3 Date Filed: 10/04/2022 No. 20-60997 The BIA determined the IJ’s adverse credibility findings were not clearly erroneous and affirmed the denial of asylum and withholding of removal. Turning to the CAT claim, the BIA “uph[e]ld the denial of the respondent’s request for protection under …

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