Anup Shrestha v. Eric H. Holder Jr. ( 2010 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANUP SHRESTHA, 
Petitioner, No. 08-74751
v.
 Agency No.
A079-811-128
ERIC H. HOLDER JR., Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2009*
Seattle, Washington
Filed January 5, 2010
Before: Ronald M. Gould and Richard C. Tallman, Circuit
Judges, and Roger T. Benitez,** District Judge.
Opinion by Judge Gould
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Roger T. Benitez, United States District Judge for the
Southern District of California, sitting by designation.
233
SHRESTHA v. HOLDER 237
COUNSEL
Patrick Cantor, Buttar & Cantor LLP, Tukwila, Washington,
for petitioner Anup Shrestha.
Tony West, Assistant Attorney General, Civil Division,
Anthony C. Payne, Senior Litigation Counsel, Office of
Immigration Litigation, and Corlette J. Winston, Attorney,
Office of Immigration Litigation, for respondent Eric H.
Holder, Jr.
OPINION
GOULD, Circuit Judge:
Petitioner Anup Shrestha petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing his appeal
of an immigration judge’s (“IJ”) denial of his application for
asylum, withholding of removal, and protection under the
United Nations Convention Against Torture (“CAT”). We
dismiss the petition for review as to Shrestha’s asylum claim
for lack of jurisdiction.1 As to Shrestha’s remaining claims,
1
Shrestha conceded on appeal that his asylum claim was time barred.
238 SHRESTHA v. HOLDER
we have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition for review.
I
Shrestha is a native and citizen of Nepal who was admitted
to the United States as a nonimmigrant student on a temporary
basis in November 1998. Shrestha attended community col-
lege until December 2001, after which he stopped going to
school. An immigration enforcement agent served Shrestha in
April 2007 with a notice to appear and at a hearing, Shrestha,
through counsel, conceded removability.
In July 2007, Shrestha applied for asylum, withholding of
removal, and protection under the CAT. Shrestha explained in
his asylum application that, at his family home in Nepal, he
“was beaten by the Maoist[s] with a rod and bamboos” after
“[t]hey came to [his] house to recruit [him],” and that he is
“afraid that the Maoist[s] may again attack [him] and force
[him] to join them.”
Shrestha later filed a declaration in support of his applica-
tion for asylum, withholding of removal, and CAT relief,
describing his confrontation with the Maoists and subsequent
events in more detail. Shrestha declared as follows: In Octo-
ber 1998, five individuals that identified themselves as Mao-
ists came to his family’s home in Nepal with rods and
bamboo. The Maoists tried to recruit him to join their cause
of insurgency against the Nepalese government. When Shr-
estha refused, an individual grabbed Shrestha by the arms.
Shrestha panicked, tried to escape, but was caught and beaten.
Shrestha lost consciousness and awoke in a hospital. When
Shrestha was released from the hospital a week later, Shr-
estha’s parents asked him to stay with his uncle, which Shr-
estha did until he came to the United States one month later
in November 1998. After coming to the United States, Shr-
estha attended a community college. When Shrestha lost his
job in 2001, he quit school because he could no longer afford
SHRESTHA v. HOLDER 239
the tuition, and consequently he lost his student visa status.
Shrestha’s parents asked him not to come back to Nepal
because the Maoist revolution was at its peak and “Maoists
ha[d] been inquiring about [his] whereabouts frequently.”
At a hearing before the IJ, Shrestha described the confron-
tation he had with the Maoists at his family home. Shrestha
explained that he did not ask his parents for a statement in
support of his application for relief because they are illiterate
and, in any event, Shrestha concluded that his parents would
not be able to help because they too feared the Maoists. Shr-
estha said that the Maoists had not confronted him except the
single time, that none of his other family members had experi-
enced problems with the Maoists, and that he was aware of
only two instances when the Maoists had inquired about him
since the confrontation, the most recent of which was in 2001.
In October 2007, the IJ denied all relief that Shrestha
sought. The IJ concluded that Shrestha’s asylum claim was
time barred. The IJ denied Shrestha’s claims for asylum and
for withholding of removal on three alternative substantive
grounds. First, the IJ found Shrestha not credible because, in
response to questions concerning his problems with the Mao-
ists, Shrestha was at times unresponsive, and his testimony
was undetailed, inconsistent, and uncorroborated by a sup-
portive statement from Shrestha’s parents, with whom Shr-
estha had regular communication. Without credible testimony,
Shrestha could not show that he was a refugee eligible for
asylum and withholding of removal. Second, the IJ denied
relief on the basis of materially changed country conditions in
light of recent political developments in Nepal including a
peace accord between the Maoists and the Nepalese govern-
ment. Third, the IJ denied relief because Shrestha could be
expected to relocate elsewhere in Nepal given that Shrestha
had no problems with the Maoists during the time he was liv-
ing with his uncle. As to Shrestha’s CAT claim, the IJ con-
cluded that Shrestha had not shown that there was a “clear
240 SHRESTHA v. HOLDER
probability of the risk of torture” if Shrestha returned to
Nepal.
In October 2008, the BIA affirmed the IJ’s decision and
dismissed Shrestha’s appeal in a two-page order. The BIA
agreed with the IJ that Shrestha’s asylum application was time
barred. The BIA found no clear error in the IJ’s adverse credi-
bility finding and concluded that a supportive statement from
Shrestha’s parents was reasonably expected. On the basis of
the IJ’s adverse credibility finding and Shrestha’s failure to
provide a corroborative affidavit from his parents, the BIA
concluded that Shrestha had not met his burden of proof for
asylum, and therefore Shrestha could not meet the higher bur-
den of proof for withholding of removal. The BIA did not
address the IJ’s alternative conclusions that denial of asylum
and withholding of removal relief was also warranted on the
basis of changed country conditions and the possibility of
relocation. The BIA agreed with the IJ that Shrestha was not
entitled to CAT protection because Shrestha did not show that
he would be subjected to torture on return to Nepal.
Shrestha timely petitioned for review. He has conceded on
appeal that his asylum claim was time barred. Therefore, we
lack jurisdiction to review Shrestha’s petition as to his asylum
claim and we dismiss that part of Shrestha’s petition for
review. See Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th
Cir. 2007). We next address Shrestha’s claims for withholding
of removal and for CAT relief, over which we do have juris-
diction.
II
When the BIA conducts its own review of the evidence and
law rather than adopting the IJ’s decision, our review “is lim-
ited to the BIA’s decision, except to the extent that the IJ’s
opinion is expressly adopted.” Hosseini v. Gonzales, 471 F.3d
953, 957 (9th Cir. 2006) (quoting Cordon-Garcia v. INS, 204
F.3d 985, 990 (9th Cir. 2000)). But when, as here, the BIA’s
SHRESTHA v. HOLDER 241
“phrasing seems in part to suggest that it did conduct an inde-
pendent review of the record,” but the BIA’s analysis on the
relevant issues is confined to a “simple statement of a conclu-
sion,” we “also look to the IJ’s oral decision as a guide to
what lay behind the BIA’s conclusion.” Avetova-Elisseva v.
INS, 213 F.3d 1192, 1197 (9th Cir. 2000).
III
We review for substantial evidence the BIA’s determina-
tion that Shrestha is not eligible for withholding of removal.
Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). The
BIA affirmed the IJ’s denial of Shrestha’s withholding of
removal claim on the basis of the IJ’s adverse credibility
determination, and we review adverse credibility determina-
tions under the substantial evidence standard. Soto-Olarte v.
Holder, 555 F.3d 1089, 1091 (9th Cir. 2009).
[1] To qualify for withholding of removal, a petitioner must
establish a “clear probability” that his “life or freedom would
be threatened” if he returned to his homeland on account of
“race, religion, nationality, membership in a particular social
group, or political opinion.” Ahmed, 504 F.3d at 1199 (cita-
tions omitted). Eligibility for withholding of removal can be
established by demonstrating past persecution, see id., or by
“demonstrat[ing] . . . a subjective fear of persecution in the
future . . . that . . . is objectively reasonable,” Wakkary v.
Holder, 558 F.3d 1049, 1060 (9th Cir. 2009).
A
[2] For applications for asylum, withholding of removal,
and CAT relief made on or after May 11, 2005, like Shr-
estha’s, the REAL ID Act created the following new stan-
dards governing adverse credibility determinations:
Considering the totality of the circumstances, and all
relevant factors, a trier of fact may base a credibility
242 SHRESTHA v. HOLDER
determination on the demeanor, candor, or respon-
siveness of the applicant or witness, the inherent
plausibility of the applicant’s or witness’s account,
the consistency between the applicant’s or witness’s
written and oral statements . . . , the internal consis-
tency of each such statement, the consistency of such
statements with other evidence of record . . . , and
any inaccuracies or falsehoods in such statements,
without regard to whether an inconsistency, inaccu-
racy, or falsehood goes to the heart of the applicant’s
claim, or any other relevant factor.
Pub. L. No. 109-13, Div. B, §§ 101(a)(3), 101(c), 101(d), 119
Stat. 231, 303 (2005) (codified at 8 U.S.C.
§§ 1158(b)(1)(B)(iii) (asylum); 1231(b)(3)(C) (adopting the
standard in 8 U.S.C. § 1158(b)(1)(B) for withholding of
removal); 1229a(c)(4)(C) (all other relief)).
The Ninth Circuit has only recently begun to apply the new
provisions to adverse credibility determinations. See, e.g.,
Malkandi v. Mukasey, 576 F.3d 906 (9th Cir. 2009). It is plain
from the REAL ID Act’s terms that an adverse credibility
determination must be made after considering “the totality of
circumstances, and all relevant factors.” It is also plain that
relevant factors will include demeanor, candor, responsive-
ness of the applicant or witness, the inherent plausibility of
the applicant or witness’s account, consistency between the
applicant or witness’s written and oral statements, internal
consistency of each statement, and consistency of statements
with other evidence. The above list is not exhaustive because
the trier of fact may also consider “any other relevant factor.”
[3] While the above describes the statutory factors relevant
to deciding credibility based on total circumstances, the stat-
ute does not provide further guidance on the weight to be
given such factors. In light of the sparsity of Ninth Circuit
precedent construing the REAL ID Act in this context, we
conclude that it will be helpful to engage in a detailed analysis
SHRESTHA v. HOLDER 243
of how the REAL ID Act guides our review of adverse credi-
bility determinations.
[4] As stated above, the REAL ID Act requires that credi-
bility determinations be made on the basis of the “totality of
the circumstances, and all relevant factors.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). The Act lists specified factors that may
be considered such as “demeanor,” “candor,” “responsive-
ness,” “plausibility,” “inconsistency,” “inaccuracy,” and
“falsehood,” but this list is not exhaustive. IJs may look
beyond the listed factors to any “relevant factor” in assessing
credibility under the “totality of the circumstances.” Id. For
example, even though lack of detail is not expressly listed as
a factor that may be considered, the pre-REAL ID Act prac-
tice of looking to the level of detail of the claimant’s testi-
mony to assess credibility, see Singh-Kaur v. INS, 183 F.3d
1147, 1153 (9th Cir. 1999), remains viable under the REAL
ID Act as it is a “relevant factor.” 8 U.S.C.
§ 1158(b)(1)(B)(iii). The same logic holds as to other relevant
factors not listed under the REAL ID Act but previously con-
sidered in assessing credibility.
[5] While the REAL ID Act’s “totality of the circum-
stances” standard is permissive as to the breadth of factors
that may form the basis of an adverse credibility determina-
tion, the totality of the circumstances approach also imposes
the requirement that an IJ not cherry pick solely facts favoring
an adverse credibility determination while ignoring facts that
undermine that result. The Seventh Circuit, applying the
REAL ID Act, cautioned that an “IJ cannot selectively exam-
ine evidence in determining credibility, but must present a
reasoned analysis of the evidence as a whole.” Hanaj v. Gon-
zales, 446 F.3d 694, 700 (7th Cir. 2006). The Third Circuit
similarly cautioned as follows:
Although we don’t expect an Immigration Judge
to search for ways to sustain an alien’s testimony,
neither do we expect the judge to search for ways to
244 SHRESTHA v. HOLDER
undermine and belittle it. Nor do we expect a judge
to selectively consider evidence, ignoring that evi-
dence that corroborates an alien’s claims and calls
into question the conclusion the judge is attempting
to reach.
Shah v. Att’y Gen. of U.S., 446 F.3d 429, 437 (3d Cir. 2006)
(internal quotation marks and citation omitted).
[6] Credibility determinations under the REAL ID Act must
therefore “be ‘reasonable’ and ‘take into consideration the
individual circumstances’ of the applicant.” Lin v. Mukasey,
521 F.3d 22, 28 n.3 (1st Cir. 2008) (quoting H.R. Rep. No.
109-72, at 167 (2005), reprinted in 2005 U.S.C.C.A.N. 240,
292); see also Hanaj, 446 F.3d at 700 (stating that an IJ “must
present a reasoned analysis of the evidence as a whole”)
(emphasis added). Thus the REAL ID Act imports a “rule of
reason” into the assessment of the standard governing an IJ’s
credibility determination.2
2
In so doing, the REAL ID Act is like many other statutes. We mention
a few examples. In the antitrust context, interpreting § 1 of the Sherman
Act, we stated as follows: “The rule of reason weighs legitimate justifica-
tions for a restraint against any anticompetitive effects. We review all the
facts, including the precise harms alleged to the competitive markets, and
the legitimate justifications provided for the challenged practice, and we
determine whether the anticompetitive aspects of the challenged practice
outweigh its procompetitive effects.” Paladin Assocs., Inc. v. Mont. Power
Co., 328 F.3d 1145, 1156 (9th Cir. 2009) (footnote omitted); see also Bd.
of Trade of Chi. v. United States, 246 U.S. 231, 238 (1918). Also, in the
environmental law context, when evaluating compliance with NEPA,
“[w]e apply a ‘rule of reason’ standard to review the adequacy of an agen-
cy’s EIS, asking whether an EIS contains a reasonably thorough discus-
sion of the significant aspects of the probable environmental
consequences.” Friends of Yosemite Valley v. Kempthorne, 520 F.3d 1024,
1032-33 (9th Cir. 2008) (citation omitted) (alteration in original). We have
applied a rule of reason in review of agency action more generally as well.
See In re Cal. Power Exch. Corp., 245 F.3d 1110, 1124-25 (9th Cir. 2001)
(stating that “whether an agency’s delay in issuing a final order . . . war-
rant[s] mandamus” under 5 U.S.C. § 706(1) of the Administrative Proce-
SHRESTHA v. HOLDER 245
[7] Doubtless the REAL ID Act requires a healthy measure
of deference to agency credibility determinations. In Jibril v.
Gonzales, 423 F.3d 1129, 1138 n.1 (9th Cir. 2005), we stated
that the REAL ID Act is “a welcome corrective” and “in the
future only the most extraordinary circumstances will justify
overturning an adverse credibility determination.” In Kaur v.
Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005), we stated
that after passage of the REAL ID Act, “our review of an IJ’s
adverse credibility finding is significantly restricted.”
[8] The deference that the REAL ID Act requires makes
sense because IJs are in the best position to assess demeanor
and other credibility cues that we cannot readily access on
review. See H.R. Rep. No. 109-72, at 167 (“[A]n immigration
judge alone is in a position to observe an alien’s tone and
demeanor, to explore inconsistencies in testimony, and to
apply workable and consistent standards in the evaluation of
testimonial evidence. He [or she] is, by virtue of his [or her]
acquired skill, uniquely qualified to decide whether an alien’s
testimony has about it the ring of truth.” (quoting Sarvia-
Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985))). We
have highlighted the pragmatic reasons for deference to
agency credibility determinations in the context of the simi-
larly situated administrative law judge as follows:
Weight is given [to] the administrative law
judge’s determinations of credibility for the obvious
reason that he or she sees the witnesses and hears
them testify, while the Board and the reviewing
dure Act (“APA”) requires applying, among other things, “a rule of
reason” to “the time agencies take to make decisions”); see also FCC v.
Fox Television Stations, Inc., 129 S. Ct. 1800, 1830 (2009) (stating that
under the APA, courts have recognized that “agency discretion is not
unbounded,” and “[i]n so holding, . . . courts have followed a venerable
legal tradition, stretching back at least to the days of Sir Edward Coke”
that “discretion” be “limited and bound with the rule of reason and law”
(internal citations and quotation marks omitted)).
246 SHRESTHA v. HOLDER
court look only at cold records. All aspects of the
witness’s demeanor—including the expression of his
countenance, how he sits or stands, whether he is
inordinately nervous, his coloration during critical
examination, the modulation or pace of his speech
and other non-verbal communication—may con-
vince the observing trial judge that the witness is tes-
tifying truthfully or falsely. These same very
important factors, however, are entirely unavailable
to a reader of the transcript, such as the Board or the
Court of Appeals.
Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 662 (9th Cir.
2003) (alteration in original) (internal quotation marks and
citations omitted).
[9] Despite our recognition that agency credibility determi-
nations deserve substantial deference, the REAL ID Act does
not give a blank check to the IJ enabling him or her to insulate
an adverse credibility determination from our review of the
reasonableness of that determination. For example, an IJ nor-
mally may not rely on nothing more than a vague reference
to the “totality of the circumstances” or recitation of naked
conclusions that a petitioner’s testimony was inconsistent or
implausible, that the petitioner was unresponsive, or that the
petitioner’s demeanor undermined the petitioner’s credibility.
We have consistently required that the IJ state explicitly the
factors supporting his or her adverse credibility determination.
See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002)
(“Although the substantial evidence standard is deferential,
the IJ must provide a specific cogent reason for the adverse
credibility finding.” (citation and internal quotation marks
omitted)). This rule is not altered by the REAL ID Act and is
warranted: “Boilerplate opinions, which set out general legal
standards yet are devoid of statements that evidence an indi-
vidualized review of the petitioner’s contentions and circum-
stances, neither afford the petitioner the . . . review to which
he or she is entitled, nor do they provide an adequate basis for
SHRESTHA v. HOLDER 247
this court to conduct its review.” Castillo v. INS, 951 F.2d
1117, 1121 (9th Cir. 1991).
[10] As a corollary principle, we have concluded that the
better practice is for the agency to provide specific instances
in the record that form the basis of the agency’s adverse credi-
bility determination. Thus, for example, “[t]o support an
adverse credibility determination based on unresponsiveness,
the BIA must identify particular instances in the record where
the petitioner refused to answer questions asked of him.”
Singh v. Ashcroft, 301 F.3d 1109, 1114 (9th Cir. 2002) (cita-
tion omitted). Similarly, we will reverse adverse credibility
determinations based on boilerplate demeanor findings, see
Paramasamy v. Ashcroft, 295 F.3d 1047, 1048-50 (9th Cir.
2002), because the IJ’s demeanor findings should specifically
point out the noncredible aspects of the petitioner’s demeanor,
Arulampalam v. Ashcroft, 353 F.3d 679, 685-87 (9th Cir.
2003).
The REAL ID Act did not strip us of our ability to rely on
the institutional tools that we have developed, such as the
requirement that an agency provide specific and cogent rea-
sons supporting an adverse credibility determination, to aid
our review.3 In our first opinion applying the REAL ID Act
to credibility determinations, we stated that the IJ must still
“provide ‘specific and cogent reasons’ in support of an
adverse credibility determination.” Malkandi, 576 F.3d at 917
(quoting He v. Ashcroft, 328 F.3d 593, 595 (9th Cir. 2003)).
At least one other circuit has reached the same conclusion.
3
Rather, concerning credibility, the REAL ID Act’s “principal purpose
was to eliminate a limitation, elaborated by the Ninth Circuit, on the type
of inconsistencies upon which an IJ could rely in assessing credibility.”
Rivas-Mira v. Holder, 556 F.3d 1, 5 (1st Cir. 2009). “The net effect of the
neoteric provision was to scrap the ‘heart of the matter’ rule.” Id.; see also
Lin, 521 F.3d at 28 n.3. Thus, the REAL ID Act now permits an IJ to base
an adverse credibility determination on any inconsistency “without regard
to whether an inconsistency . . . goes to the heart of the applicant’s claim.”
8 U.S.C. § 1158(b)(1)(B)(iii).
248 SHRESTHA v. HOLDER
See Chen v. U.S. Att’y Gen., 463 F.3d 1228, 1231 (11th Cir.
2006) (per curiam) (applying the REAL ID Act and stating
that “the IJ must offer specific, cogent reasons for the
[adverse credibility] finding”). Requiring specificity on the
part of the IJ is also consistent with the legislative history
expressing the intent of Congress that IJs will describe the
factors forming the basis of their credibility findings. H.R.
Rep. No. 109-72, at 167 (“Congress expects that the trier of
fact will describe those factors that form the basis of the
trier’s opinion. This is true even where the trier of fact bases
a credibility determination in part or in whole on the demea-
nor of the applicant.”).
[11] The REAL ID Act implemented an important substan-
tive change concerning the kinds of inconsistencies that may
give rise to an adverse credibility determination. Inconsisten-
cies no longer need to “go to the heart” of the petitioner’s
claim to form the basis of an adverse credibility determina-
tion. 8 U.S.C. § 1158(b)(1)(B)(iii). As a threshold matter, an
IJ may consider any inconsistency. As one commentator has
suggested, “That immigration judges have the power to con-
sider any inconsistency, however, is quite distinct from the
issue of whether the inconsistencies cited support an adverse
credibility determination.” Scott Rempell, Credibility Assess-
ments and the REAL ID Act’s Amendments to Immigration
Law, 44 Tex. Int’l L.J. 185, 206 (2008). There is a measure
of truth in that observation.
[12] To support an adverse credibility determination, incon-
sistencies must be considered in light of the “totality of the
circumstances, and all relevant factors.” 8 U.S.C.
§ 1158(b)(1)(B)(iii); see Kadia v. Gonzales, 501 F.3d 817,
822 (7th Cir. 2007) (“[Under the REAL ID Act, t]he immigra-
tion judge may consider inaccuracies or falsehoods that do not
go to the heart of the asylum applicant’s claim, but he can do
so only as part of his consideration of ‘the totality of the cir-
cumstances, and all relevant factors.’ ”). The REAL ID Act’s
SHRESTHA v. HOLDER 249
charge that inconsistencies be considered in the context of the
total circumstances carries with it important implications.
[13] First, an utterly trivial inconsistency, such as a typo-
graphical error, will not by itself form a sufficient basis for an
adverse credibility determination. See Hassan v. Holder, 571
F.3d 631, 637 (7th Cir. 2009) (“Although the REAL ID Act
requires a highly deferential review of credibility findings,
Immigration Judges may not rely on inconsistencies that are
completely trivial . . . .” (citation omitted)); Kadia, 501 F.3d
at 822 (stating in dicta that the IJ “cannot discredit otherwise
persuasive testimony because of a misspelling in the asylum
application”).4 Mindful of the legitimate impact that even
minor inconsistencies may have on credibility, we conclude
only that trivial inconsistencies that under the total circum-
stances have no bearing on a petitioner’s veracity should not
form the basis of an adverse credibility determination.
4
We do not intend to suggest that under the totality of the circumstances
each inconsistency must be material in the sense of important to the peti-
tioner’s well-founded fear of persecution; such a requirement would con-
tradict the REAL ID Act’s plain text. See Xiu Xia Lin v. Mukasey, 534
F.3d 162, 165 (2d Cir. 2008). Indeed, under the REAL ID Act, even minor
inconsistencies, in proper circumstances, will support an adverse credibil-
ity determination. By persuasive analogy, in the context of administrative
proceedings before the Federal Communications Commission, the
Supreme Court explained how minor inconsistencies may prove probative
of an individual’s veracity:
The fact of concealment may be more significant than the facts
concealed. The willingness to deceive a regulatory body may be
disclosed by immaterial and useless deceptions as well as by
material and persuasive ones. We do not think it is an answer to
say that the deception was unnecessary and served no purpose.
FCC v. WOKO, Inc., 329 U.S. 223, 227 (1946). Similarly, even a petition-
er’s minor inconsistencies, when aggregated or when viewed in light of
the total circumstances, may undermine credibility. Cf. United States v.
Arvizu, 534 U.S. 266, 274-75 (2002) (concluding that in the “totality of the
circumstances” analysis required for a reasonable-suspicion determination
in the Terry context, inferences may be drawn from the cumulative impact
of activities that appear innocent when viewed individually).
250 SHRESTHA v. HOLDER
[14] Second, in evaluating inconsistencies, the relevant cir-
cumstances that an IJ should consider include the petitioner’s
explanation for a perceived inconsistency, see Soto-Olarte,
555 F.3d at 1091, and other record evidence that sheds light
on whether there is in fact an inconsistency at all. To ignore
a petitioner’s explanation for a perceived inconsistency and
relevant record evidence would be to make a credibility deter-
mination on less than the total circumstances in contravention
of the REAL ID Act’s text.
In summary, we conclude that under the REAL ID Act, IJs
must “provide specific and cogent reasons in support of an
adverse credibility determination.” Malkandi, 576 F.3d at 917
(internal quotation marks omitted). In assessing the “totality
of the circumstances,” an IJ should discuss which statutory
factors, including but not limited to “demeanor,” “candor,”
“responsiveness,” “plausibility,” “inconsistency,” “inaccura-
cy,” and “falsehood,” form the basis of the adverse credibility
determination. 8 U.S.C. § 1158(b)(1)(B)(iii). An IJ may also
rely on any other relevant factor. For each factor forming the
basis of an adverse credibility determination, the IJ should
refer to specific instances in the record that support a conclu-
sion that the factor undermines credibility. See, e.g., Singh,
301 F.3d at 1114 (unresponsiveness); Arulampalam, 353 F.3d
at 685-87 (demeanor). 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 mis-
spelling, Hassan, 571 F.3d at 637, and the petitioner’s expla-
nation for the inconsistency, if any, should be considered in
weighing credibility, Soto-Olarte, 555 F.3d at 1091. Because
an adverse credibility determination under the REAL ID Act
must be based on the “totality of the circumstances,” the IJ
also should consider and address, as necessary or otherwise
appropriate, relevant evidence that tends to contravene a con-
clusion that a given factor undermines credibility. Hanaj, 446
F.3d at 700. On review of agency credibility determinations,
the broad permissible standards that may warrant an adverse
credibility determination must be assessed under a rule of rea-
SHRESTHA v. HOLDER 251
son. See Lin, 521 F.3d at 28 n.3; Hanaj, 446 F.3d at 700. This
rule-of-reason analysis should give ample deference to the
responsible agency, which has specialized expertise and the
opportunity to observe the testimony. But the analysis on
review must also take into account the totality of circum-
stances, and should recognize that the normal limits of human
understanding and memory may make some inconsistencies
or lack of recall present in any witness’s case.
B
Having discussed how the REAL ID Act guides our credi-
bility inquiry, we turn to application of the standard to the
facts of this case.
1. Unresponsiveness
The IJ concluded that Shrestha “had no response” to ques-
tions concerning the Maoists’ continued interest in him. The
BIA similarly concluded that Shrestha was “at times, non-
responsive.”
[15] The REAL ID Act expressly permits the agency to
base a credibility determination on the “responsiveness of the
applicant or witness.” 8 U.S.C. § 1158(b)(1)(B)(iii). As dis-
cussed above, the REAL ID Act did not alter the requirement
that the IJ must identify specific instances, supported by the
record, where the petitioner did not respond. Singh, 301 F.3d
at 1114. Shrestha argues that neither the BIA nor the IJ identi-
fied particular instances in the record where Shrestha was
unresponsive. We disagree. The agency is not required to pro-
vide a pinpoint citation to the record, but rather to “identify
particular instances in the record” where the petitioner was
unresponsive. Id. (emphasis added). The IJ did just that. The
IJ did not simply state that Shrestha was unresponsive, but
that Shrestha was unresponsive to questions concerning
“whether anyone may have been looking for him since he was
last in Nepal in November of 1998.” The IJ, after noting a
252 SHRESTHA v. HOLDER
“long pause” in Shrestha’s previous answer, asked whether
Shrestha “ha[d] any idea when anybody was supposedly look-
ing for you?” The IJ, unable to elicit a comprehensible
answer, asked again: “If you have an idea when anybody was
looking for you, tell me when . . . . You’ve given ambiguous
responses here. I don’t understand what you’re saying.” The
IJ stated, “The record will reflect that there’s a long pause.
The Respondent’s not saying anything.” Shrestha never
responded to these queries, and finally the IJ abandoned that
line of questioning. The IJ’s specificity in pointing to this
instance of unresponsiveness went well beyond the type of
“general statement that the petitioner was unresponsive” that
Singh was concerned with. Id. (internal quotation marks omit-
ted). This instance of blatant and unexplained unresponsive-
ness supports the IJ’s adverse credibility determination. But
there is more.
The record also reflects that Shrestha was unresponsive in
other instances, though these instances were not specifically
identified by the IJ or BIA in their decisions. When asked
why he did not list his uncle’s address as his most recent
address before coming to the United States, Shrestha started
to answer, “But I was just . . . .” The IJ, apparently not satis-
fied that an answer was forthcoming, asked, “Is there an
answer?” Later, when Shrestha’s counsel asked him whether
there was “anything else which [they] did not cover” or that
Shrestha “want[ed] to . . . tell the Judge,” Shrestha gave no
reply, and the IJ stated, “The record will reflect silence.”
When the IJ asked why Shrestha did not “follow the instruc-
tions by [providing specific dates, places and descriptions] in
the application [for relief],” Shrestha again gave no reply, and
the IJ added, “Let the record reflect that there is no response.”
While neither the IJ nor the BIA specifically referred to these
instances of unresponsiveness in rendering their decisions, the
record’s demonstration that Shrestha’s unresponsiveness was
a pattern throughout the hearing is one of the circumstances
that the REAL ID Act entitles the agency to consider in
assessing Shrestha’s credibility.
SHRESTHA v. HOLDER 253
2. Lack of detail
The BIA concluded that Shrestha’s “undetailed . . . testimo-
ny,” among other reasons, supported the IJ’s adverse credibil-
ity finding. The IJ noted that Shrestha had provided “no
particular details” concerning the Maoists’ continued interest
in him.
[16] Shrestha supplied only vague assertions that Maoists
had been inquiring about him and gave few details. The most
detailed testimony Shrestha provided at the hearing was that
“[t]he first [time the Maoists inquired about me] was like a
week after I came back [to the United States] again [in
1998],” and “[t]he second time [the Maoists inquired about
me] . . . was once when I went out of status, like in December
of 2001, when I quit school.” But Shrestha did not identify the
names of any of the Maoists or describe them in any way. Nor
did he state how many were inquiring about him, why they
were looking for him, what they wanted, why he thought their
interest in him persisted given that they had not inquired
about him since 2001, or why he continued to fear the Maoists
in light of their apparent loss of interest in him. The IJ gave
Shrestha an opportunity to supplement his responses to pro-
vide more detail concerning any “fear [he has] of anything
bad happening to [him] or has happened to [him],” but Shr-
estha declined to do so.
3. Inconsistencies
Both the BIA and IJ noted that Shrestha had provided
inconsistent testimony and equivocated. The IJ concluded that
Shrestha claimed alternatively, and inconsistently, to have
lived most recently before coming to the United States with
both his parents and his uncle. The IJ also concluded that Shr-
estha’s hearing testimony that Maoists had inquired about him
on two occasions in 1998 and 2001 was inconsistent with his
declaration testimony that “Maoists have been inquiring about
[his] whereabouts frequently.”
254 SHRESTHA v. HOLDER
Shrestha cites Chebchoub v. INS, 257 F.3d 1039, 1043 (9th
Cir. 2001), for the proposition that any inconsistencies that
form the basis of an adverse credibility determination must go
to the heart of the petitioner’s claim and Vilorio-Lopez v. INS,
852 F.2d 1137, 1142 (9th Cir. 1988), for the proposition that
minor inconsistencies that reveal nothing about a petitioner’s
fear for his or her safety are insufficient. Shrestha is mistaken
to rely on these cases as they are both pre-REAL ID Act
cases. “[U]nder the REAL ID Act credibility findings no lon-
ger need to go ‘to the heart of the applicant’s claim.’ ” Mal-
kandi, 576 F.3d at 918 (quoting 8 U.S.C.
§ 1158(b)(1)(B)(iii)). The explicit statutory language and pur-
pose behind the statutory change totally demolish Shrestha’s
argument that inconsistencies must go to the heart of his
claim.
When the IJ asked Shrestha about his inconsistent response
regarding with whom he had stayed before coming to the
United States, Shrestha explained that his stay with his uncle
was only temporary and for one month. For this reason, he
said that he gave his parents’ address, not his uncle’s, in his
application for relief. The IJ and BIA did not consider Shr-
estha’s explanation. Even if there is some slight inconsistency
between Shrestha providing his parents’ address as his most
recent address and stating that he had stayed with his uncle
temporarily, it is too trivial, under the total circumstances,
alone to form the basis of the adverse credibility determina-
tion.
[17] On the other hand, the IJ’s inconsistency determina-
tion regarding Shrestha’s accounts of the frequency with
which the Maoists had inquired about him is supported by
substantial evidence. This inconsistency is not merely trivial.
Although inconsistencies no longer need to go to the heart of
the petitioner’s claim, when an inconsistency is at the heart of
the claim it doubtless is of great weight. Shrestha’s asserted
fear of the Maoists formed the crux of his application for
relief. Despite having the opportunity to do so, Shrestha pro-
SHRESTHA v. HOLDER 255
vided no explanation for the inconsistency in his testimony
about the Maoists’ inquiries as to his whereabouts. In light of
the total circumstances, Shrestha’s inability to consistently
describe the underlying events that gave rise to his fear was
an important factor that could be relied upon by the IJ in mak-
ing an adverse credibility determination.
4. Corroboration
[18] Under the REAL ID Act, we may not reverse the IJ’s
and BIA’s conclusion that Shrestha should have been able to
obtain a supportive affidavit from his parents to corroborate
his claims concerning the Maoists unless “a reasonable trier
of fact is compelled to conclude that such corroborating evi-
dence is unavailable.” 8 U.S.C. § 1252(b)(4). The REAL ID
Act expressly permits the agency to require an applicant to
“provide evidence that corroborates otherwise credible testi-
mony . . . , unless the applicant does not have the evidence
and cannot reasonably obtain the evidence.” 8 U.S.C.
§ 1158(b)(1)(B)(ii). This differs from our pre-REAL ID Act
rule that the agency may not require corroborating evidence
in the absence of an explicit adverse credibility determination.
See Aden v. Holder, ___ F.3d ___, No. 08-71168, 2009 WL
4877951, at * 2-3, (9th Cir. Dec. 18, 2009) (concluding that
“Congress abrogated” prior precedent “that corroboration can-
not be required from an applicant who testified credibly”).
Shrestha cites Sidhu v. INS, 220 F.3d 1085 (9th Cir. 2000),
for the proposition that “it is inappropriate to base an adverse
credibility determination on an applicant’s inability to obtain
corroborating affidavits from relatives or acquaintances living
outside of the United States” because “such corroboration is
almost never easily available.” Id. at 1091-92. We reject Shr-
estha’s reliance on Sidhu. First, Sidhu states a general rule that
admits exceptions. Id. (stating that affidavits from those out-
side the United States are “almost never easily available”
(emphasis added)); see also Kaur v. Ashcroft, 379 F.3d 876,
890 (9th Cir. 2004) (“It is generally inappropriate . . . ‘to base
256 SHRESTHA v. HOLDER
an adverse credibility determination on an applicant’s inabil-
ity to obtain corroborating affidavits from relatives or
acquaintances living outside of the United States—such cor-
roboration is almost never easily available.’ ” (emphasis
added) (quoting Sidhu, 220 F.3d at 1091-92)).5 Second, and
more importantly, Sidhu applied the pre-REAL ID Act stan-
dard. The REAL ID Act changed the standard governing
when a trier of fact may require corroborating evidence from
where the evidence is “easily available” to where the evidence
is “reasonably obtainable,” see 8 U.S.C. § 1158(b)(1)(B)(ii),
and imposed a heightened standard of review requiring that
we reverse an agency’s determination concerning the avail-
ability of corroborative evidence only if a reasonable trier of
fact would be compelled to conclude that such corroborating
evidence is unavailable, 8 U.S.C. § 1252(b)(4). It was within
Congress’s power to make such changes in the standards gov-
erning corroborating evidence.
[19] Here, the BIA concluded that corroborating evidence
was reasonably obtainable (the BIA used the phrase “reason-
ably expected”), and a reasonable trier of fact would not be
compelled to conclude that corroborating evidence was
unavailable. See 8 U.S.C. § 1252(b)(4). Shrestha’s parents
were not unreachable. They were not, for example, living in
a remote village accessible only by dirt roads. To the contrary,
Shrestha’s parents were living in the capital city of Kath-
mandu and Shrestha was in regular contact with them. While
Shrestha may have explained some difficulties in obtaining an
affidavit, including his parents’ illiteracy and their fear of the
Maoists, that is not sufficient for us to conclude that a reason-
5
Nor is the flexibility of Sidhu’s rule a mere theoretical possibility: we
concluded in Chebchoub that obtaining an affidavit from a “close relative”
living overseas—there, Western Europe—would be “a relatively uncom-
plicated task” and would “not pose the type of particularized evidentiary
burden that would excuse corroboration.” 257 F.3d at 1044-45 (citation
omitted) (concluding that such corroborating evidence would be easily
available and upholding the BIA’s conclusion that Chebcoub was not
credible because he did not produce it).
SHRESTHA v. HOLDER 257
able trier of fact would be compelled to conclude that evi-
dence corroborating the situation with the Maoists in Nepal
was unavailable, as is now required by the REAL ID Act.
[20] In sum, the BIA’s conclusion that the IJ properly
denied Shrestha withholding of removal is supported by sub-
stantial evidence. The adverse credibility determination by the
IJ relied on factors explicitly permitted by the REAL ID Act
including unresponsive and undetailed testimony, and incon-
sistent testimony for which there was no explanation or cor-
roboration. In the totality of circumstances it was a reasonable
adverse credibility determination, grounded in the record and
based on real problems with Shrestha’s testimony, not mere
trivialities. Absent Shrestha’s discredited testimony, there is
no objective evidence that establishes a “clear probability”
that upon return to Nepal Shrestha will be subject to persecu-
tion based on a protected ground. See Ahmed, 504 F.3d at
1199 (citation omitted).6
IV
We review for substantial evidence the BIA’s determina-
tion that Shrestha is not eligible for protection under CAT.
See Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008)
(citation omitted). We review the BIA’s interpretation of
purely legal questions de novo. See Zheng v. Ashcroft, 332
F.3d 1186, 1193 (9th Cir. 2003).
The IJ denied Shrestha’s CAT claim because Shrestha
“ha[d] not shown any ‘clear probability’ of the risk of ‘tor-
ture’ if he had to return to Nepal.” The BIA similarly con-
cluded that Shrestha “failed to demonstrate that he would be
6
Because concluding that the adverse credibility determination is based
on substantial evidence is sufficient to deny Shrestha’s petition as to with-
holding of removal, we do not reach the IJ’s alternative conclusions
(which the BIA did not address) that relief is not warranted due to changed
country conditions and the possibility that Shrestha could relocate.
258 SHRESTHA v. HOLDER
subjected to torture by or with the acquiescence of any gov-
ernment official if returned to Nepal.”
To receive CAT protection, a petitioner must prove that it
is “more likely than not” that he or she would be tortured if
removed. 8 C.F.R. § 1208.16(c)(2); Kamalthas v. INS, 251
F.3d 1279, 1283 (9th Cir. 2001). An adverse credibility deter-
mination is not necessarily a death knell to CAT protection.
See Kamalthas, 251 F.3d at 1284 (“[W]e are not comfortable
with allowing a negative credibility determination in the asy-
lum context to wash over the torture claim . . . .” (quoting
Mansour v. INS, 230 F.3d 902, 909 (7th Cir. 2000))). But
when the petitioner’s “testimony [is] found not credible, to
reverse the BIA’s decision [denying CAT protection,] we
would have to find that the reports alone compelled the con-
clusion that [the petitioner] is more likely than not to be tor-
tured.” Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th
Cir. 2006).
[21] When Shrestha’s CAT claim is denuded of his discred-
ited testimony, all that remains is the background material he
provided concerning conditions in Nepal. The background
materials establish the presence of violent Maoists in Nepal.
For example, in early 2006, “Maoist forces abducted civilians
and committed unlawful killings and torture.” But the materi-
als also establish, and Shrestha acknowledged, that as of May
2006 there was a peace accord in place between the Maoists
and the Nepalese Government. Furthermore, the materials
include a conclusion by the Asylum and Immigration Tribunal
that “it would only be in very limited cases that a person
would be able to show he or she faces a risk in his or her
home area at the hands of the Maoists.” Shrestha has not dem-
onstrated that his experience falls within one of those limited
cases and the information contained in the background materi-
als does not compel the conclusion that Shrestha is more
likely than not to be tortured if he returns to Nepal. Therefore,
the BIA’s determination that Shrestha is not entitled to CAT
protection is supported by substantial evidence.
SHRESTHA v. HOLDER 259
V
[22] We DISMISS Shrestha’s petition for review as to his
asylum claim, and we DENY Shrestha’s petition for review
of the agency’s rejection of his withholding of removal and
CAT claims.