Dserenochir v. Holder , 365 F. App'x 825 ( 2010 )

FILED
NOT FOR PUBLICATION FEB 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BAYASGALAN DSERENOCHIR; No. 05-75127
DOLGIO NATSAGDORJ;
SUVDANCHIMEG BAYASGALAN; Agency Nos. A097-583-395
MUNGUNCHIMEG BAYASGALAN, A097-583-396
A097-583-397
Petitioners, A097-583-398
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2010**
San Francisco, California
Before: THOMPSON and McKEOWN, Circuit Judges, and ZILLY, *** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
Bayasgalan Dserenochir,1 a citizen of Mongolia, petitions for review of the
order by the Board of Immigration Appeals (BIA) dismissing his appeal of an
immigration judge’s (IJ) denial of his application for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). The IJ denied
relief on adverse credibility grounds, and the BIA affirmed. We have jurisdiction
under 8 U.S.C. § 1252.
Credibility findings are reviewed under a substantial evidence standard and
will be upheld unless the evidence compels a contrary result. He v. Ashcroft, 328
F.3d 593, 595 (9th Cir. 2003) (citation omitted). “To reverse the BIA finding we
must find that the evidence not only supports that conclusion but compels it.”
I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The BIA held that the IJ’s
adverse credibility determination was supported by 1) numerous inconsistencies; 2)
Dserenochir’s vague and non-responsive testimony; and 3) a lack of corroborating
evidence. Because the BIA’s order was supported by substantial evidence and the
evidence does not compel a contrary result, we deny the petition for review. See
He, 328 F.3d at 595.
1
Dserenochir’s wife and two minor children, all also citizens of Mongolia,
also petition for asylum, withholding of removal, and relief under the CAT
derivatively. Because Dserenochir’s testimony forms the only evidence in support
of their applications, their applications are tied to the outcome of Dserenochir’s
application.
2
Dserenochir asserted past persecution and a fear of future persecution by the
Mongolian Communist Party because of his former support of democratic leaders,
his unwillingness to support Communist leaders, and his unwillingness to provide
“false evidences” against his friends in the opposition. However, Dserenochir
testified inconsistently with respect to his declaration and between direct
examination and cross-examination in recounting a number of key details of the
central event in his alleged persecution, when Communist officials in the
government came to his house and subsequently detained him and beat him for his
support of democratic leaders. Dserenochir also testified vaguely and non-
responsively with respect to one of the other main grounds for his asylum claim:
that the Communist Party was asking him to fabricate cases against democratic
leaders. These inconsistencies and Dserenochir’s vague and non-responsive
testimony are specific, cogent reasons that goes to the heart of his claim, and thus,
there is substantial evidence to support the adverse credibility finding.2 Shire v.
Ashcroft, 388 F.3d 1288, 1295, 1298 (9th Cir. 2004).
2
Because Dserenochir’s asylum application was filed prior to May 11, 2005,
the REAL ID Act, which did away with the “heart of the claim” rule, see 8 U.S.C.
§ 1158(b)(1)(B)(iii), does not apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064
n.1 (9th Cir. 2005).
3
Finally, although a petitioner for asylum may rely on testimony alone to
establish the requisite fear of persecution, Molina-Estrada v. I.N.S., 293 F.3d 1089,
1094 (9th Cir. 2002), where that testimony lacks credibility and there is an absence
of other supporting evidence, the testimony alone is insufficient to form the basis
of an asylum or withholding of removal claim. Dserenochir has advanced no
documentation or additional evidence to support his claims of his past persecution,
political activity, or medical treatment for his kidney problems or ongoing
depression allegedly due to his torture and persecution. He similarly provided no
documentation to support his characterization of a campaign of persecution by the
Communist Party in Mongolia of democratic supporters that would create a
reasonable fear of persecution by individuals such as himself. Accordingly, we are
not presented with a situation where “the evidence presented was so compelling
that no reasonable factfinder could find that the petitioner was not credible.” Id. at
1295.
Because Dserenochir failed to satisfy his burden of establishing eligibility
for asylum relief through credible evidence, he also cannot meet the higher
withholding of removal standard. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th
Cir. 2000). Finally, because Dserenochir’s CAT claim is predicated on the same
4
statements that doom his other claims, we must similarly affirm the rejection of
this claim. Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).
PETITION FOR REVIEW DENIED.
5