Ipinbhai Patel v. Eric Holder, Jr. ( 2014 )

FILED
NOT FOR PUBLICATION DEC 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IPINBHAI MANIBHAI PATEL, No. 11-71282
Petitioner, Agency No. A089-697-097
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 20, 2014
San Francisco, California
Before: BERZON and RAWLINSON, Circuit Judges, and BUCKLO, Senior
District Judge.**
Ipinbhai Manibhai Patel, a native and citizen of India, petitions for review of
the Board of Immigration Appeals’ (BIA) order affirming an immigration judge’s
(IJ) determination that he is removable and is not entitled to asylum, withholding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.
of removal, or protection under the Convention Against Torture (CAT). We
review for substantial evidence the agency’s factual findings, applying the
standards governing adverse credibility determinations created by the REAL ID
Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny the
petition for review.
Substantial evidence supports the agency’s adverse credibility
determination. Even assuming that certain of the cited inconsistencies in Patel’s
testimony were too trivial to suggest a lack of truthfulness, see Ren v. Holder, 648
F.3d 1079, 1085 (9th Cir. 2011), the BIA’s conclusion that Patel’s demeanor
eroded his credibility is supported by the record. The BIA cited several portions of
Patel’s testimony to support the conclusion that he exhibited an “unexplained
evasive, confused, and unresponsive manner.” In one of the excerpts, Patel was
questioned about why he remained in India for approximately two years after his
imprisonment in 2005. The record reflects that Patel’s responses not only were
punctuated by a “long pause,” they also provided two substantively different
answers to the question, “why didn’t you leave India after your second arrest in
2005?” as well as a third in which he claimed not to remember anything. Because
this example documents both the “long pauses” and the “shifting” testimony the IJ
noted in her demeanor assessment, it supports her demeanor finding, which, in
2
turn, sustains the adverse credibility determination. See Huang v. Holder, 744 F.3d
1149, 1155 (9th Cir. 2014). The BIA’s additional citations underscore that the
previous example was not isolated, and that the IJ noted a pattern of hesitant
testimony as well as specific, non-credible aspects of Patel’s demeanor.
Substantial evidence likewise supports the BIA’s conclusion that Patel did
not carry his burden of proof on his asylum, withholding of removal, and CAT
claims. Patel argues that the IJ and BIA erroneously faulted him for failing to
present supporting affidavits from his friend Josef and from the doctor who treated
him because those documents were not reasonably obtainable. But this argument
is not consistent with the record, as Patel’s own testimony reveals his belief that
the documents were, or might have been, available had he asked for them.
Finally, although a reasonable fact finder might conclude that the affidavits
submitted by Patel’s father and brother corroborated his claims, we may not
substitute our judgment about the persuasiveness of this evidence for that of the
BIA. Aden v. Holder, 589 F.3d 1040, 1046 (9th Cir. 2009). Rather, we must
affirm the BIA’s finding that Patel’s corroboration was insufficient unless the
record compels a contrary conclusion. Id. It does not.
Petition DENIED.
3