Djing Hwie Liem v. Holder ( 2011 )

FILED
NOT FOR PUBLICATION JUL 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DJING HWIE LIEM, ) No. 07-74240
)
Petitioner, ) Agency No. A095-634-689
)
v. ) MEMORANDUM *
)
ERIC H. HOLDER Jr., Attorney )
General, )
)
Respondent. )
)
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 13, 2011 **
Pasadena, California
Before: FERNANDEZ, RYMER, and TALLMAN, Circuit Judges.
Djing Hwie Liem, a native and citizen of Indonesia, petitions for review of
the Board of Immigration Appeals’ denial of his application for withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
removal,1 and Convention Against Torture (CAT) relief.2 We deny the petition.
The BIA’s determination that an alien is not eligible for relief must be
upheld if “‘supported by reasonable, substantial, and probative evidence on the
record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.
Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence
presented . . . was such that a reasonable factfinder would have to conclude that the
requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s adverse
determination, “he must show that the evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of persecution.”
Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. The same standard applies
to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.
2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir. 2003). However,
when a determination is based upon credibility, “‘a specific, cogent reason’” for
1
8 U.S.C. § 1231(b)(3). On appeal Liem does not brief the issue of denial of
asylum relief, which was based on his failure to file in a timely fashion. That issue
is waived. See Ghahremani v. Gonzales, 498 F.3d 993, 1000 (9th Cir. 2007);
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
2
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, Dec. 10, 1984, Treaty Doc. No. 100–20,
1465 U.N.T.S. 85 implemented at 8 C.F.R. § 1208.18.
2
disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th
Cir. 2004). Moreover, in this pre-Real ID Act case, the inconsistency must go to
the heart of the claim. See Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004).
Liem asserted that he was persecuted because he was Chinese. We have
reviewed the record and we are satisfied that the BIA’s decision was supported by
substantial evidence.3 The BIA upheld the IJ’s credibility decision and pointed to a
number of inconsistencies that went to the heart of Liem’s withholding claim, but,
of course, only one inconsistency need be shown. See Li, 378 F.3d at 964. For
example, Liem’s claims of assaults on himself and his wife are rife with
inconsistencies which go to the heart of those claims. Thus, we are unable to say
that a “reasonable factfinder would have to conclude that the requisite fear of
persecution existed.” Elias-Zacarias, 502 U.S. at 481, 112 S. Ct. at 815; see also
Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) .
Because Liem lacked credibility, we need not and do not consider whether
he could have shown persecution had he been credible, or whether disfavored
3
Because the BIA deferred to the Immigration Judge’s credibility findings
and also discussed some of them in detail, we consider both determinations. See
Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007).
3
group analysis would otherwise have made a difference,4 or whether consideration
of a report, not admitted at the hearing, would have affected the decision if he had
been credible.5
Finally, the evidence in the record does not compel a determination that it is
more likely than not that Liem would be tortured in Indonesia. Thus, he is not
entitled to CAT relief. See Wakkary, 558 F.3d at 1067–68; Almaghzar v.
Gonzales, 457 F.3d 915, 922–23 (9th Cir. 2006); Singh v. Gonzalez, 439 F.3d
1100, 1113 (9th Cir. 2006).
Petition DENIED.
4
See Wakkary v. Holder, 558 F.3d 1049, 1065 (9th Cir. 2009); Sael v.
Ashcroft, 386 F.3d 922, 927, 929 (9th Cir. 2004).
5
See Circu v. Gonzales, 450 F.3d 990, 994–95 (9th Cir. 2006) (en banc);
Getachew v. INS, 25 F.3d 841, 845–46 (9th Cir. 1994).
4