Ramandip Kaur v. Eric Holder, Jr. ( 2012 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 12a1046n.06
No. 11-4001 FILED
Oct 02, 2012
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
RAMANDIP KAUR, )
)
Petitioner, )
) ON PETITION FOR REVIEW
v. ) FROM THE UNITED STATES
) BOARD OF IMMIGRATION
ERIC H. HOLDER, JR., Attorney General, ) APPEALS
)
Respondent. )
)
BEFORE: GIBBONS and COOK, Circuit Judges; ROSENTHAL, District Judge.*
PER CURIAM. Ramandip Kaur petitions this court for review of an order of the Board of
Immigration Appeals (BIA) dismissing her appeal from an immigration judge’s (IJ) decision denying
her application for asylum, withholding of removal, and protection under the Convention Against
Torture (CAT) and ordering her removal to India.
On April 17, 2007, Kaur, a native and citizen of India, filed an Application for Asylum and
for Withholding of Removal (Form I-589), asserting that the police in India arrested and beat her and
her family members for allegedly providing food and shelter to militants. The Department of
Homeland Security (DHS) subsequently served Kaur with a notice to appear in removal proceedings,
alleging that she entered the United States at an unknown place on an unknown date, without being
*
The Honorable Lee H. Rosenthal, United States District Judge for the Southern District of
Texas, sitting by designation.
No. 11-4001
Kaur v. Holder
admitted or paroled after inspection by an immigration officer. The DHS charged Kaur with
removability under § 212(a)(6)(A)(I) of the Immigration and Nationality Act, 8 U.S.C.
§ 1182(a)(6)(A)(I), as an alien present in the United States without being admitted or paroled. An
asylum officer interviewed Kaur and referred her case to an IJ. Kaur admitted the factual allegations
contained in the notice to appear, asserting that she entered the United States from Canada on
September 3, 2006, and conceded removability as charged.
After a removal hearing, the IJ pretermitted Kaur’s asylum application because she failed to
establish that she applied for asylum within one year of her arrival in the United States. With respect
to withholding of removal, the IJ found that Kaur was not credible and that she failed to meet her
burden of proof. The IJ also determined that Kaur “set forth absolutely no facts or circumstances
to show that it is more likely than not that she would be tortured if forced to return to India.”
Accordingly, the IJ denied Kaur’s applications for relief and ordered her removal to India.
Kaur appealed the IJ’s decision to the BIA but expressly declined to challenge the IJ’s
determination that she failed to establish the timeliness of her asylum application. The BIA upheld
the IJ’s adverse credibility finding and dismissed Kaur’s appeal. This timely petition for review
followed.
We lack jurisdiction to review the IJ’s decision to pretermit Kaur’s asylum application
because she declined to present this issue to the BIA and, therefore, has failed to properly exhaust
this claim. See Ramani v. Ashcroft, 378 F.3d 554, 559-60 (6th Cir. 2004).
Kaur contests the IJ’s adverse credibility finding with regard to her applications for
withholding of removal and protection under the CAT. The IJ’s credibility determination is a finding
-2-
No. 11-4001
Kaur v. Holder
of fact reviewed for substantial evidence; we will reverse that determination “only if any reasonable
adjudicator would be compelled to conclude to the contrary.” Hachem v. Holder, 656 F.3d 430, 434
(6th Cir. 2011). Kaur argues that the IJ’s adverse credibility finding was based on minor
inconsistencies that did not go to the essence of her claim. Kaur filed her application after the
effective date of the REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 231 (codified in scattered
sections of 8 U.S.C.), which “changed the standard governing credibility determinations, stating that
those determinations may be made ‘without regard to whether an inconsistency, inaccuracy, or
falsehood goes to the heart of the applicant’s claim.’” Amir v. Gonzales, 467 F.3d 921, 925 n.4 (6th
Cir. 2006) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Kaur testified that she was arrested on two
occasions—in 1995 and in February 1999—and that she had no personal contact with the police
from the time of her arrest in 1999 through her departure from India in 2006. In her amended I-589,
Kaur claimed that she had been “arrested many times by police in the past and mistreated” and that
this happened “during the period from 1999 to 2004.” Given these critical inconsistencies about the
number of arrests and their timing, as well as Kaur’s overall vague testimony and implausible
explanations, the record does not compel a conclusion contrary to the IJ’s adverse credibility finding.
Because she failed to make a threshold showing of credibility, Kaur cannot establish that she is
entitled to withholding of removal or protection under the CAT. See Zhao v. Holder, 569 F.3d 238,
249 (6th Cir. 2009).
Kaur urges this court to direct the DHS to exercise its prosecutorial discretion in accordance
with the priorities set forth in a memorandum from John Morton, Director of U.S. Immigration and
-3-
No. 11-4001
Kaur v. Holder
Customs Enforcement. We lack jurisdiction to do so. See 8 U.S.C. § 1252(g); Reno v. American-
Arab Anti-Discrimination Comm., 525 U.S. 471, 482 (1999).
For the foregoing reasons, we dismiss for lack of jurisdiction Kaur’s challenge to the IJ’s
decision to pretermit her asylum application and otherwise deny her petition for review.
-4-