United States Court of Appeals

For the Eighth Circuit

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No. 18-3303

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Akoi Samolu

lllllllllllllllllllllPetitioner

v.

William P. Barr, Attorney General of the United States

lllllllllllllllllllllRespondent

 ___________________________

No. 18-3694

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 Akoi Samolu

lllllllllllllllllllllPetitioner

v.

William P. Barr, Attorney General of the United States

lllllllllllllllllllllRespondent

 ____________

Petition for Review of an Order of the

Board of Immigration Appeals

 ____________
 Submitted: September 3, 2019

Filed: October 8, 2019

[Unpublished]

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Before BENTON, SHEPHERD, and KELLY, Circuit Judges. 

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PER CURIAM.

In these consolidated matters, Liberian citizen Akoi Samolu petitions for

review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal

from the decision of an immigration judge (IJ), which denied asylum, withholding of

removal, and relief undertheConvention AgainstTorture (CAT). Having jurisdiction

under 8 U.S.C. § 1252, this court finds no basis for reversal. 

Samolu was admitted to the United States as a lawful permanent resident in

September 2015. In June 2016, a Minnesota court issued a two-year order of

protection to Samolu’s mother and sister, who were in immediate danger of domestic

abuse from Samolu, and enjoined him from going near or entering their residence,

or contacting them. In December 2017, Samolu pled guilty to violating the protection

order. The Department of Homeland Security served him with a Notice to Appear

(NTA), charging himwith being removable. See 8 U.S.C. § 1227(a)(3)(E)(ii) (“[a]ny

alien who at any time after admission is enjoined under a protection order issued by

a court and whom the court determines has engaged in conduct that violates the

portion of a protection order that involves protection against credible threats of

violence, repeated harassment, or bodily injury” is deportable). 

Samolu admitted the charge in the NTA and applied for asylum, withholding

of removal, and relief under CAT based on his membership in the National Patriotic

Front of Liberia (NPFL), the assault and torture by members of the Liberian Drug

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Enforcement Agency (LDEA), and a fear of persecution as a gay man and gay rights

activist. 

At his hearing, Samolu claimed he was assaulted by LDEA agents and injured

so severely he required hospitalization. Samolu offered inconsistent dates for his

activities and the threats against him, conflicting sources of those threats,

contradictory descriptions of his participation in the NPFL, and conflicting details of

the attack by LDEA agents. His descriptions of the resulting injuries and treatment

were contradicted by the medical record and found implausible by the IJ. Samolu

stated he has a girlfriend in Liberia with whom he has a child and a continuing

relationship. He also testified he is a gay man who has had sexual relationships with

men, and was a gay rights activist. Samolu called himself a “swinger.” 

Based on Samolu’s demeanor, responsiveness, his many inconsistent and

contradictory statements, the totality of the circumstances, and lack of corroborating

evidence to support his claims, the IJ found Samolu totally unreliable and his

testimony not credible. The IJ concluded that Samolu “can’t keep it straight” and

“appeared to be making it up as he goes.” The IJ denied relief and ordered Samolu’s

removal. The BIA affirmed, holding that in the absence of credible testimony and

specific corroborating evidence, Samolu failed to meet his burden to establish

eligibility for asylum, withholding of removal and protection under CAT.

This court reviews administrative findings of fact, including credibility

determinations, under the substantial-evidence standard, affirming unless “any

reasonable adjudicator would be compelled to conclude to the contrary.”Fesehaye v.

Holder, 607 F.3d 523, 526 (8th Cir. 2010) (burden of proof as to eligibility for

asylum may be satisfied through applicant’s testimony, but only if applicant satisfies

the trier of fact that testimony is credible and persuasive). An IJ who seesthe witness

while testifying isin the best position to make credibility findings. R.K.N. v. Holder,

701 F.3d 535, 538 (8th Cir. 2012). When the BIA has adopted and affirmed the IJ’s

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adverse credibility findings, this court defers to those findings if they are supported

by specific, cogent reasons for disbelief. Id. An IJ may base a credibility

determination on the demeanor, candor, or responsiveness of the applicant or witness;

the inherent plausibility of the applicant’s account; and the consistency between the

applicant’s statements and the internal consistency of such statement, without regard

to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the

applicant’s claim. See Chakhov v. Lynch, 837 F.3d 843, 846 (8th Cir. 2016); 8 U.S.C.

§ 1158(b)(1)(B)(iii) (credibility standard for asylumclaim); 8 U.S.C. § 1231(b)(3)(C)

(same for withholding of removal). The agency was not required to accept Samolu’s

alternate explanations for any discrepanciesin his testimony. See Kegeh v. Sessions,

865 F.3d 990, 996 (8th Cir. 2017) (agency was not required to accept petitioner’s

alternate explanations for inconsistenciesif another explanation was reasonable). The

adverse credibility determination was sufficiently supported, and no reasonable

adjudicator would be compelled to reach a contrary conclusion.

1

 

Appeal No. 18-3694 addresses a 28 U.S.C. § 2241 petition filed in the district

court and transferred to this court as a petition for review of the final order of

removal. In it, Samolu challenges his continued detention. This court lacks

jurisdiction to consider Samolu’s continued detention. See 8 U.S.C. § 1252(a)(5)

(“sole and exclusive means” for judicial review of an order of removal is petition for

review filed with a court of appeals); Bah v. Cangemi, 548 F.3d 680, 683 n.3 (8th Cir.

2008) (REAL ID Act “does not affect a district court’s jurisdiction over habeas

petitions challenging the detention associated with a removal order”). To the extent

Samolu’s transferred section 2241 petition seeksto challenge his continued detention,

it is remanded to the district court for consideration in the first instance. This court

expresses no views on the merits of any such petition.

1The separate opinion cites Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th

Cir. 2007). There, this court relied on the BIA’s failure to explain the IJ’s credibility

determination and how it wassupported. Id. Here, the BIA did explain the credibility

determination, detailing many facts supporting it. 

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The petition for review in Appeal No. 18-3303 is denied. In Appeal No. 18-

3694, the court remands the portions of the transferred petition challenging the

detention associated with the removal proceedings or removal order to the district

court for its consideration in the first instance.

KELLY, Circuit Judge, concurring in part and dissenting in part. 

To establish his eligibility for asylum, Samolu was required to show that he

was unwilling to return to Liberia because of past persecution, or a well-founded fear

of future persecution, on account of race, religion, nationality, membership in a

particular social group, or political opinion. 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1). 

Samolu asserted that he satisfied this requirement based on: (1) his past membership

in the NPFL, (2) his past assault and torture by members of the LDEA, and (3) his

fear of persecution as a gay man and a gay-rights activist. I agree that, as to the first

two claims, the IJ’s adverse credibility determinations were based on “specific,

cogent” reasons that are “convincing enough that a reasonable adjudicator would not

be compelled to reach the contrary conclusion.” Singh v. Gonzales, 495 F.3d 553,

557–58 (8th Cir. 2007).2 But I find the IJ’s reasoning as to the third claim more

troubling. 

The IJ and the BIA found Samolu’s claim that he feared persecution as a gay

man and gay-rights advocate incredible because he “was unable to reconcile the

timing of his claimed homosexual relationship with the timing of his current

relationship to the mother of his child.” But early on in the asylum hearing, Samolu

explained that he had multiple sexual preferences. And when the IJ later pressed

Samolu on this issue, he explained, 

2

I also agree that this court lacks jurisdiction to consider Samolu’s challenges

to his continued detention in Appeal No. 18-3694, and I concur in the remand of that

portion of the transferred petition.

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as a gay in Africa, you can’t open up who you are. You got to find a

way to cover up your -- you’ve got to find a way to cover up all your

sexuality. . . . [T]he easiest way is to have a kid and a wife -- or a

girlfriend living with you. And that way, they will not look at you as

gay. They will not think of you as gay.

Thistestimony is consistent with a country report, provided to the IJ before the

hearing, stating that “[t]he law prohibits consensual same-sex sexual activity” in

Liberia and that “discrimination against LGBTI persons is prevalent throughout the

society, and violence against the community continue[s]to be a concern.” The report

notesthat, for thisreason, “LGBTI persons were cautious aboutrevealing their sexual

orientation or gender identities.” To the extent that the IJ found Samolu’s testimony

incredible based on nothing more than his own view that a gay man could not be

involved in a relationship with a woman, I cannot say that the IJ’s conclusion was

supported by “specific, cogent reasons.” See Tian v. Barr, 932 F.3d 664, 669 (8th

Cir. 2019) (adverse credibility determination based on the IJ’s “personal beliefs and

perceived common knowledge” was not supported by specific, cogent reasons);

Shahinaj v. Gonzales, 481 F.3d 1027, 1029 (8th Cir. 2007) (adverse credibility

determination based on “the IJ’s personal and improper opinion” that the applicant

“did not dress or speak like or exhibit the mannerisms of a homosexual” was not

supported by specific, cogent reasons).

The court affirmsthe credibility determination based on the IJ’sstatementsthat

Samolu’s testimony was “totally unreliable” because he “c[ould not] keep itstraight”

and “appeared to be making it up as he goes.” But these statements are also without

adequate support. The IJ said that Samolu “can’t keep it straight” in reference to

Samolu’s testimony about a romantic relationship he had with a man named Oliver. 

Although the IJ believed Samolu’stestimony about this relationship was inconsistent,

the record shows that the testimony was consistent and the IJ’s contrary belief

stemmed from the IJ’s own misapprehension of Samolu’s testimony. Similarly, the

IJ provided only one example of where he thought Samolu “appeared to be making

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it up as he goes”—Samolu’s testimony “about churches being stoned as they held

marriages for gay couples,” which the IJ found was “not consistent with current

country conditions.” However, the IJ did not explain the basisfor this conclusion and

it contradicts the country report in the record.

For these reasons, I cannot agree that the IJ’s credibility assessment on this

claim was “sufficiently supported.” I would grant the petition.

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