United States Court of Appeals

For the Eighth Circuit

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No. 16-2554

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Kodjo Kegeh, also known as Jean-Paul Christian Kegeh

lllllllllllllllllllllPetitioner

v.

Jefferson B. Sessions, III, Attorney General of the United States

lllllllllllllllllllllRespondent

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Petition for Review of an Order of the

 Board of Immigration Appeals

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 Submitted: March 7, 2017

 Filed: July 31, 2017

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Before WOLLMAN, MELLOY, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

Kodjo Kegeh applied for asylum, withholding ofremoval, and protection under

the Convention Against Torture (CAT). The Immigration Judge (IJ) denied all three

applications. Kegeh appealed to the Board of Immigration Appeals (BIA), which

affirmed the IJ’s decision. Kegeh petitions for review, arguing that the IJ and the BIA

erred in denying his applications. We deny the petition because Kegeh has failed to
meet his burden: to show that any reasonable adjudicator would be compelled to find

in his favor.

I.

Since 1969, the West African nation of Togo has been governed by a single

national political party. After the death of the previous president in 2005, Faure

Gnassingbe became president by military fiat. In April of that year, a presidential

election was held. Gnassingbe was elected president, but the election process was

marred by irregularities and violence. Under pressure from the international

community to change, President Gnassingbe and members ofsome opposition parties

signed the Global Political Agreement (GPA) in 2006. One opposition party, the

UFC, declined to join. Kodjo Kegeh was a member of the UFC.

Kegeh is a citizen and native of Togo, and his native language is French. He

was admitted to the United States as a nonimmigrant visitor on March 1, 2011, with

permission to remain here until August 31, 2011. He did not leave by that date and

has remained in this country ever since. In late 2011, he submitted applications for

asylum, withholding of removal, and protection under the CAT to the Department of

Homeland Security’s United States Citizenship and Immigration Services (USCIS).

Kegeh’s application was accompanied by an affidavit. His attorney helped him

prepare both documents. According to Kegeh, he prepared both documents in

French, and then his French wastranslated into English. The English translation was

then read back to him in French. Kegeh stated that he was aware of what was in his

application and affidavit.

In February 2012, an asylum officer from USCIS interviewed Kegeh. Later

that month, USCIS referred Kegeh to removal proceedings before an IJ after

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concluding that Kegeh lacked credibility and provided testimony inconsistent with

his affidavit. Removal proceedingsthen began pursuant to 8 U.S.C. § 1227(a)(1)(B).

A.

At hearings before an IJ, Kegeh testified that he represented the UFC at a poll

station during the April 2005 presidential election. After the voting closed and the

ballots were being counted, military forces appeared and violence broke out. Kegeh

testified thatsoldiersstarted beating people and using tear gas on them, but he did not

mention soldiers shooting or using real bullets.

When the election results were announced two days later, and Gnassingbe was

elected president, Kegeh and other members of the UFC protested. Kegeh testified

that the military came to the protest armed with guns but did not use them against the

protestors.

A short while later, Kegeh and others were kidnapped by the military. Soldiers

took him into a military barracks where he was subjected to severe physical abuse. 

The next day, he and the others were driven out to a field. The beatings began again,

and Kegeh fell unconscious. He testified that the next memory he had was waking

up in a clinic with severe burns on his chest and torso. Kegeh avers that the military

set him and the others on fire after the beatings. Villagers found him barely alive and

took him to the clinic. In a 2012 letter purportedly from Kegeh’s wife but written by

a pastor in Togo, she confirms that Kegeh was beaten and burned in April 2005. At

the hearing, Kegeh began to lift his shirt to reveal the extent of his burns. The IJ

informed him that this was unnecessary as she already had pictures of the burns. She

also gave him the chance to describe his injuries for the record.

Following the 2005 events, Kegeh left Togo for two years, but then returned. 

In 2010, new elections were held in Togo. Kegeh testified that he did not engage in

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any political campaigning before the 2010 elections. He testified that he was

involved in “pre-campaigning” to informpeople of his party’s program. He left Togo

for the last time after an event preceding the 2010 elections. Kegeh testified that he

was at a soccer game when a police officer approached him and several others with

a “really juicy assignment.” The officer handed him four bags and asked the group

to take the bags to party headquarters in exchange for a large sum of money. Kegeh

opened the bags and found guns, grenades, and other military articles. He assumed

this was a plot by the military to frame him and other party members for possessing

dangerous weapons. He threw the bags away and fled the country. Kegeh testified

that soldiers came looking for him at his family’s home in Togo in 2012 and

physically assaulted his daughter.

B.

After two days of hearings, the IJ ruled against Kegeh on the ground that he

lacked credibility. This credibility finding was rooted in numerous inconsistencies

between Kegeh’s testimony and the record, the implausibility of certain events, and

a lack of corroborating evidence. The IJ found that the inconsistencies in Kegeh’s

story went directly to the underlying basis for his asylum claim.

For example, Kegeh had testified that no shooting occurred at the poll station

the day of the 2005 presidential election. But in his affidavit he claimed the military

used real bullets that day. When confronted about this discrepancy, Kegeh did not

remember saying in his affidavit that real bullets were used. The asylum application

of Francisco Anthony, a fellow member of the UFC who was granted asylum by

USCIS in 2010, also contradicted Kegeh’s testimony. Anthony, purportedly a friend

1

and someone Kegeh speaks with every other week, claimed that he worked at the

same poll station in 2005 as Kegeh. Anthony claimed that the military opened fire

Kegeh offered Anthony’s asylum statement to support his own asylum claim.

1

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on the crowd, killing one UFC member. Kegeh testified that there were no shots fired

on the crowd. Kegeh also testified that he did not see Anthony at the poll station and

has never discussed the events of that day with Anthony during their biweekly phone

calls.

Kegeh also testified that the military did not use guns at the protests of the

election results two days later. But in his affidavit he claimed that the military used

real bullets that day. When the IJtried to clarify this discrepancy, Kegeh’s responses

were vague and evasive. 

Turning to the events of 2010, Kegeh testified that he did not take part in any

political campaigning. His affidavit, however, states that he actively participated in

door-to-door campaigning and whatever else was asked of him for the campaign. 

Also in his affidavit, Kegeh claimed that the ruling party was actively manipulating

the electoral committee. When asked at the hearing if the electoral committee was

being manipulated, Kegeh claimed he did not know what the electoral committee was. 

Further questions about what Kegeh had meant by “electoral committee” led to

confusing and vague answers. Next, Kegeh testified that he was at a soccer game

when the police officer had approached him with the bags of guns. But his affidavit

stated that he was on the campaign trail, not at a soccer game. Kegeh explained that

it was actually a campaign soccer tournament.

The IJ also found Kegeh’s testimony regarding his relationship with Anthony

to be implausible. For one thing, the IJ found that, if Anthony’s asylum statement

was true, then it was implausible for Kegeh not to have heard gunshots or learned of

the death of a fellow UFC member after the 2005 election. The IJ expressed doubt

that Kegeh had never discussed these events with Anthony. The court lastly noted

inconsistencies with Kegeh’s claimthat he never spoke with Anthony about the burns

he received at the hands of the military. Later testimony revealed a brief exchange

where Kegeh and Anthony did discuss the burns between themselves.

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The IJ noted other inconsistencies in Kegeh’s testimony. Kegeh, who claimed

that he had been to the UFC’s headquarters many times, could not give the street

name of the headquarters. Kegeh also testified that the GPA was signed in 2007; it

was signed in 2006. There was also a discrepancy as to when soldiers physically

assaulted his daughter: Kegeh testified that the attack occurred in 2012 while his wife

stated that it happened in 2010.

The IJ also made an adverse demeanor finding. She noted that Kegeh became

fidgety anytime his relationship with Anthony was discussed and anytime he was

asked about his asylum interview and affidavit. Kegeh grew visibly agitated

whenever confronted with an apparent discrepancy.

Finally, the IJfound that Kegeh had not provided corroborating evidence of his

claims. Kegeh failed to provide the original French affidavits or offer an adequate

explanation as to why the originals were not available. This led the IJ to give little

weight to Kegeh’s justifications for errors or inconsistencies.

II.

Kegeh appealed the IJ’s order to the BIA, who affirmed the IJ’s conclusions. 

“Both immigration decisions will be reviewed together whenever the BIA adopts and

affirms the IJ’s decision, but also adds reasoning of its own.” Arevalo-Cortez v.

Lynch, 829 F.3d 1022, 1026 (8th Cir. 2016). “We review questions of law de novo,

and we will reverse findings of fact only if the evidence is so compelling that no

reasonable fact finder could fail to find in favor of the petitioner.” Ali v. Holder, 776

F.3d 522, 526 (8th Cir. 2015) (internal quotation marks omitted). If the decisions of

the IJ and BIA are supported by substantial evidence in the record, we will affirm. 

Id. 

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“Under our immigration law, [t]he Attorney General has discretion to grant

asylum to a refugee, defined as an alien who is unable or unwilling to return to [his]

home country because of past persecution or a well-founded fear offuture persecution

on account of race, religion, nationality, membership in a particular social group, or

political opinion.” Fesehaye v. Holder, 607 F.3d 523, 526 (8th Cir. 2010) (first

alteration in original) (internal quotation marks omitted). As amended by the REAL

ID Act of 2005, federal law places the burden on the petitioner to provide credible,

persuasive, and sufficiently specific evidence in support of his petition. See 8 U.S.C.

§ 1158(b)(1)(B)(i)-(ii). 

“All applications for asylum and withholding of removal require a threshold

determination of the applicant’s credibility.” Garcia v. Lynch, 655 F. App’x 511, 514

(8th Cir. 2016) (per curiam) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)). “The IJ is in the

best position to make credibility findings because [she] sees the witness as the

testimony is given.” Fesehaye, 607 F.3d at 527 (alteration in original) (internal

quotation marks omitted). As a result, we must defer to the IJ’s credibility

determinations when the IJ provides specific, cogent reasons for her disbelief. See

Onsongo v. Gonzalez, 457 F.3d 849, 852 (8th Cir. 2006); see also Yu An Li v.

Holder, 745 F.3d 336, 340 (8th Cir. 2014) (“Such findings are conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary.” (internal

quotation marks omitted)). “The combination of an adverse credibility finding and

a lack of corroborating evidence for the claim of persecution means that the

applicant’s claim fails, regardless of the reason for the alleged persecution.” 

Averianova v. Mukasey, 509 F.3d 890, 895 (8th Cir. 2007) (internal quotation marks

omitted).

Kegeh argues that the IJ erred in its credibility findings either because (1) he

explained the inconsistencies, (2) the inconsistencies did not go to the heart of his

right to asylum, or (3) they did not enhance his claim for asylum.

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First, Kegeh claims he has offered sufficient explanations for some of his

inconsistent testimony. Kegeh points out that he explained the inconsistency about

when the GPA was signed in his hearing. His attorney asked him on the second day

of the hearing when the GPA was signed, and Kegeh responded that it was signed in

2006 but that he did not hear about it until 2007, thus explaining the inconsistency. 

Kegeh has also offered medical records purportedly showing that his daughter was

attacked in 2012 as he testified to at his hearing. 

Second, Kegeh argues that several inconsistencies in his testimony do not go

to the heart of his asylum petition. These inconsistencies include the name of the

street where party headquarters was located, any campaigning Kegeh might have

done prior to the 2010 election, and the use of different terms for the campaign soccer

tournament. Kegeh contends that “[a]n adverse credibility finding must be based on

issues that go to the heart of the applicant’s claim [and] cannot be based on an

irrelevant inconsistency.” Marikasi v. Lynch, 840 F.3d 281, 287 (6th Cir. 2016)

(internal quotation marks omitted). These inconsistencies, Kegeh continues, cannot

form the basis of an adverse credibility finding against him.

Finally, Kegeh alleges that the remaining inconsistencies in his testimony

failed to enhance his claim for asylum, and therefore were immaterial. These

inconsistencies included whetherthe military used real bullets against UFC members,

his confusion about what the electoral committee was, his lack of knowledge about

the murder of a UFC member, and inconsistencies with statements made by Anthony

in his asylum application. Kegeh argues that “if discrepancies cannot be viewed as

attempts by the applicant to enhance his claims of persecution, they have no bearing

on credibility.” See Ceraj v. Mukasey, 511 F.3d 583, 591 (6th Cir. 2007) (internal

quotation marks omitted).

Kegeh’s arguments fall short of the standard set forth under current federal

immigration law. First, “even where an applicant’s explanations are plausible, an

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agency is not required to accept the explanations if an alternative explanation is

reasonable.” Nadeem v. Holder, 599 F.3d 869, 873 (8th Cir. 2010) (citing Rafiyev

v. Mukasey, 536 F.3d 853, 857 (8th Cir. 2008)). Second, immigration law now

permits an IJto base her credibility determination on the consistency of a petitioner’s

testimony and other written statements in the record, “without regard to whether an

inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s claim.” 

Yu An Li, 745 F.3d at 341 (internal quotation marks omitted); see also Slyusar v.

Holder, 740 F.3d 1068, 1072 (6th Cir. 2014) (acknowledging that the REAL ID Act

reversed prior law that required an inconsistency reach the heart of the matter when

making a credibility determination). “[E]ven ancillary inconsistencies in a

petitioner’s testimony support adverse credibility findings.” Slyusar, 740 F.3d at

1073. And the “cumulative effect” of multiple inconsistencies, even if not directly

material to the petition, can support a reasonable fact finder’s adverse credibility

determination. See Xiu Xia Lin v. Mukasey, 534 F.3d 162, 167 (2d Cir. 2008). 

Third, several of the inconsistencies in his testimony do, in fact, go to the heart of his

petition. Kegeh claims that he has suffered persecution in the past and has a wellfounded fear of future persecution because of his political activities. Yet his

testimony revealed significant inconsistencies as to his political activities. For

example, a member of his political party was murdered the day of the 2005

presidential election, but Kegeh was not aware of this and apparently has never

discussed the events of that day with others who were aware. Kegeh also

contradicted himself as to whether the soldiers used real bullets. In his affidavit he

spoke of an electoral committee in Togo, but at the hearing expressed confusion

regarding what the electoral committee was. Even the minor inconsistencies or lack

of knowledge exhibited by Kegeh, such as failing to know the party headquarters’s

street address or what kind of campaigning he did before the 2010 election, provide

a fact finder reasonable doubt concerning the credibility of his claim of persecution

for political activities. See Turay v. Ashcroft, 405 F.3d 663, 668 (8th Cir. 2005) (“[I]t

is essential that the victim’s political opinion motivates the persecution.”).

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“We conclude the IJ’s credibility finding was supported by specific, cogent

reasons for disbelief, and we cannot say ‘any reasonable adjudicator would be

compelled to conclude to the contrary.’” Thu v. Holder, 596 F.3d 994, 999 (8th Cir.

2010) (quoting 8 U.S.C. § 1252(b)(4)(B)). Kegeh’s remaining arguments center on

his extensive burns, which he contends constitute proof of torture. The IJ, however, 2

did not find Kegeh’s testimony credible, as discussed above. Further, Kegeh testified

that he was unconscious and then woke up with burns on his body. He could only

surmise asto how he got the burns. Neither he nor the burns, therefore, could provide

evidence for a torture claim. The only corroborating evidence Kegeh offered for his

torture claim was a letter from his wife. But the IJ gave little weight to that letter,

because it was written in French and Kegeh’s wife does not speak French. For this

specific, cogent reason, we cannot say the IJ erred in affording little weight to the

letter. See Fesehaye, 607 F.3d at 527-28. In the end, “substantial evidence supports

the denial of asylum.” Arevalo-Cortez, 829 F.3d at 1027. 

III.

“When asylum, withholding removal, and CAT claims are based on the same

discredited testimony, the adverse credibility finding isfatal to all three claims.” Ali,

776 F.3d at 528 (internal quotation marks omitted). Accordingly, we deny Kegeh’s

petition for review.

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Kegeh complains the IJ prevented him from removing his shirt to reveal his

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burns during the hearing. But, as stated previously, the IJ had pictures of the burns

taken by a physician. What she asked Kegeh to do was to describe his burns for the

official record, which lifting his shirt would have failed to accomplish. Because the

IJ considered all of the admitted evidence—including Kegeh’s medical reports and

photos— in making her decision, we see no error.

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