Milan Ghimire v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MILAN RAJ GHIMIRE, No. 17-71242
Petitioner, Agency No. A205-302-657
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 10, 2021**
San Francisco, California
Before: HAWKINS and MILLER, Circuit Judges, and RESTANI,*** Judge.
Milan Ghimire, a native and citizen of Nepal, seeks review of an order by the
Board of Immigration Appeals (BIA) dismissing his appeal from an immigration
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Jane A. Restani, Judge for the United States Court of
International Trade, sitting by designation.
judge’s (IJ) denial of his application for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT). We have jurisdiction under
8 U.S.C. § 1252(a)(1), and we deny the petition.
The record does not compel the conclusion that Ghimire offered credible
testimony. “Because the BIA expressly adopted the IJ’s decision under Matter of
Burbano, but also provided its own review of the evidence and the law, we review
both the IJ and the BIA’s decision.” Joseph v. Holder, 600 F.3d 1235, 1240 (9th
Cir. 2010). “[O]nly the most extraordinary circumstances will justify overturning
an adverse credibility determination.” Shrestha v. Holder, 590 F.3d 1034, 1041 (9th
Cir. 2010) (quoting Jibril v. Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005)).
The IJ and BIA cited numerous factors that support the adverse credibility
determination considering the totality of the circumstances: (1) inconsistencies with
respect to Ghimire’s fear of returning to Nepal and his reasons for coming to the
United States (including his denial of having any fear of returning to Nepal during
his initial immigration interview, see Li v. Ashcroft, 378 F.3d 959, 963 (9th Cir.
2004), superseded by statute on other grounds, 8 U.S.C. § 1158(b)(1)(b)(iii)); (2)
Ghimire’s omission of a “key aspect” of his participation in a protest that precipitated
one incident of abuse; and (3) inconsistencies in the documentary evidence that the
IJ found significant in context. The IJ considered but reasonably rejected Ghimire’s
explanations for these inconsistencies, and the record does not compel a different
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result. See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011). Accordingly,
substantial evidence supports the denial of Ghimire’s application for asylum and
withholding of removal because he failed to establish a well-founded fear of
persecution.
Substantial evidence also supports the denial of CAT relief. See Wakkary v.
Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009). Analyzing Ghimire’s eligibility
apart from his discredited testimony, the IJ determined that the record failed to
establish a particularized threat of torture to Ghimire or the required government
participation or acquiescence. See Dhital v. Mukasey, 532 F.3d 1044, 1051–52 (9th
Cir. 2008). Ghimire points to no evidence that compels a contrary conclusion.
PETITION DENIED.
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