Bishnu Gurung v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 14 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BISHNU MAYA GURUNG, No. 20-71535
Petitioner, Agency No. A096-874-486
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 4, 2021**
Seattle, Washington
Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,*** District
Judge.
Bishnu Maya Gurung, a native and citizen of Nepal, seeks review of a
*
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 Paul L. Friedman, United States District Judge for the
District of Columbia, sitting by designation.
decision of the Board of Immigration Appeals (BIA) dismissing her appeal from an
Immigration Judge’s (IJ) order denying her applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition.
We review the agency’s legal determinations de novo and factual findings
for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011).
We will uphold the agency’s decision if it is “supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Tampubolon v.
Holder, 610 F.3d 1056, 1059 (9th Cir. 2010). When making credibility
determinations, IJs are accorded “substantial deference” because they “are in the
best position to assess demeanor and other credibility cues that we cannot readily
access on review.” Shrestha v. Holder, 590 F.3d 1034, 1041–42 (9th Cir. 2010).
“[O]nly the most extraordinary circumstances will justify overturning an adverse
credibility determination.” Id. at 1041.
1. IJs must “provide ‘specific and cogent reasons’ in support of an
adverse credibility determination.” Id. at 1043 (citation omitted). “When an
inconsistency is cited as a factor supporting an adverse credibility determination,
that inconsistency should not be a mere trivial error such as a misspelling . . . .” Id.
at 1044. Here, the IJ identified three specific and cogent reasons to support the
adverse credibility determination: (1) petitioner unreasonably failed to testify
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concerning a serious incident of harm that she had included in her declaration;
(2) petitioner implausibly testified that although she was extremely politically
active in Nepal, she was not politically active at all in the United States; and (3)
while testifying, petitioner frequently failed to directly respond to questions and
tended to give evasive and nonresponsive answers.
First, the inconsistency identified by the IJ was not trivial. See Kaur v.
Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005) (collecting examples of
“non-material, trivial” inconsistencies). The incident that petitioner excluded from
her testimony significantly corroborates her testimony about other incidents of
harm, and petitioner included it in her declaration. The fact that petitioner’s
omission weakened her claim does not preclude the IJ from considering it in the
credibility determination. See id. at 1065. Second, the IJ properly considered the
plausibility of petitioner’s testimony regarding her political activity and found it
implausible that petitioner testified that she was extremely politically active in
Nepal, while not engaging in any political activity in the United States. See Yali
Wang v. Sessions, 861 F.3d 1003, 1008 (9th Cir. 2017) (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)) (stating that IJs may base a credibility determination on “the
inherent plausibility of the applicant’s or witness’s account”). Third, the IJ
provided a “cogent explanation of the specific aspects of the petitioner’s demeanor
that detracted from . . . her credibility.” Lizhi Qiu v. Barr, 944 F.3d 837, 843 (9th
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Cir. 2019). We conclude that substantial evidence supports the IJ’s adverse
credibility finding.
2. “To qualify for asylum, a petitioner must establish that he or she . . .
‘is unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, [his or her] country because of persecution or a
well-founded fear of persecution on account of’ a protected ground.”
Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th Cir. 2010) (citations omitted).
In the absence of petitioner’s credible testimony, we conclude that the remaining
evidence in the record, including a doctor’s letter and a declaration from
petitioner’s mother, is insufficient for petitioner to meet her burden of establishing
past persecution or a well-founded fear of future persecution. See Gu v. Gonzales,
454 F.3d 1014, 1021 (9th Cir. 2006); Garcia v. Holder, 749 F.3d 785, 792 (9th Cir.
2014).
3. “To demonstrate eligibility for withholding of removal, the petitioner
must show a clear probability of the threat to life or freedom if deported to his or
her country of nationality.” Lianhua Jiang, 754 F.3d 733, 740 (9th Cir. 2014)
(citation and internal quotation marks omitted). “The clear probability standard is
more stringent than the well-founded fear standard for asylum.” Id. (citation
omitted). Because petitioner cannot meet her burden for asylum, she similarly
cannot meet her burden for withholding of removal. See id.4
4. To be eligible for CAT protection, petitioner must “establish that it is
more likely than not that . . . she would be tortured if removed to the proposed
country of removal.” 8 C.F.R. § 208.16(c)(2). In the absence of petitioner’s
credible testimony, we conclude that the remainder of the evidence in the record—
including country reports and a declaration from petitioner’s mother—is
“insufficient to compel the conclusion that Petitioner would be tortured if
returned” to Nepal. Lianhua Jiang, 754 F.3d at 740 (emphasis in original).
PETITION DENIED.
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