Ravinder Kumar v. Eric Holder, Jr. , 607 F. App'x 681 ( 2015 )

FILED
APR 28 2015
NOT FOR PUBLICATION MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAVINDER KUMAR, No. 11-72077
Petitioner, Agency No. A075-684-866
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submission Deferred February 3, 2015
Submitted April 23, 2015**
San Francisco, California
Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.
Petitioner Ravinder Kumar, a native and citizen of India, entered the United
States on a fraudulent K-1 fiancé visa and sought asylum. He now seeks review of
the Board of Immigration Appeals’ (“BIA”) decisions barring him from adjusting
*
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).
his status and dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his
applications for asylum, withholding of removal, and Convention Against Torture
(“CAT”) protection. We have jurisdiction under 8 U.S.C. § 1252 and we deny the
petition for review.
First, Kumar contends that he may adjust his status based on a relative
petition filed by his U.S. citizen father, notwithstanding § 245(d) of the
Immigration and Nationality Act (“INA”), which bars a K-1 visaholder from
adjusting his status on any basis other than marriage to the U.S. citizen who
petitioned on his behalf. 8 U.S.C. § 1255(d); see also 8 C.F.R. § 245.1(c)(6)
(barring a non-citizen who is “admitted” on a K-1 fiancé(e) visa from adjusting his
status unless he marries the sponsoring fiancé(e)). A K-1 visaholder is defined as
someone who enters the U.S. to marry a sponsoring U.S. citizen within ninety days
after “admission.” INA § 101(a)(15)(K), 8 U.S.C. § 1101(a)(15)(K). Kumar
argues that he is not a K-1 visaholder because he was never “admitted” as a K-1
visaholder. He was not admitted as a K-1 visaholder, he contends, because he was
procedurally admitted—he was inspected and authorized by an immigration officer
to enter—but he was never substantively admitted because he was not lawfully
privileged to enter, owing to his fraudulent K-1 visa.
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Kumar’s ability to adjust his status, then, turns on whether the terms
“admission” in INA § 101(a)(15)(K) and “admitted” in 8 C.F.R. § 245.1(c)(6)
denote procedurally regular admission or substantively lawful admission. This is a
question of law that we review de novo. Shivaraman v. Ashcroft, 360 F.3d 1142,
1145 (9th Cir. 2004).
We conclude that Kumar was admitted on a K-1 visa because INA §
101(a)(15)(K) and 8 C.F.R. § 245.1(c)(6) refer to procedurally regular admission.
This conclusion follows directly from our decision in Hing Sum v. Holder, 602
F.3d 1092 (9th Cir. 2010). In that case, we interpreted the general statutory
definition of “admitted” and “admission” in the INA to refer to procedurally
regular admission, not substantively lawful admission. Id. at 1096. There is no
reason to think that this general definition, set forth in INA § 101(a)(13)(A), 8
U.S.C. § 1101(a)(13)(A), does not control the meaning of “admission” in §
101(a)(15)(K) and “admitted” in § 245.1(c)(6). Those terms are not modified by
the term “lawful,” which has been read to denote substantively lawful admission.
See, e.g., Monet v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986); In re Koloamatangi,
23 I&N Dec. 548, 551 (BIA 2003). In addition, adopting the procedural reading
advances the purpose of the adjustment bar, which is to reduce fraud in fiancé(e)
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visas. The procedural reading also accords with traditional notions of equitable
estoppel. See Hing Sum, 602 F.3d at 1101 (Graber, J., concurring).
Because Kumar was admitted on a K-1 visa, he is barred from adjusting his
status based on his father’s petition. “Having enjoyed the benefits of” being a K-1
visaholder, Kumar “cannot now shed his skin for the purposes of seeking
beneficial relief.” Id. at 1093 (majority opinion).
Second, Kumar contends that the agency erred in denying his applications
for asylum, withholding of removal, and CAT protection on the basis of the IJ’s
adverse credibility finding. We review these decisions for substantial evidence.
Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Because this is a
pre-REAL ID case, we must uphold the agency’s adverse credibility determination
if it “is supported by substantial evidence and goes to the heart of [Kumar’s] claim
of persecution.” Rizk v. Holder, 629 F.3d 1083, 1087 & n.2 (9th Cir. 2011).
We uphold the agency’s adverse credibility finding because it rests on a
“specific, cogent reason” that goes to the heart of Kumar’s claim. Li v. Ashcroft,
378 F.3d 959, 962 (9th Cir. 2004) (quoting de Leon-Barrios v. INS, 116 F.3d 391,
393 (9th Cir. 1997)). Kumar gave inconsistent answers in his asylum application
and hearing testimony about the dates and duration of two of his three detentions.
A reasonable fact finder could conclude that these discrepancies are relevant and
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significant. Id. They are relevant because they concern the extent to which Kumar
may have been abused by officials. And “[t]hese discrepancies are significant
because they concern [two] of the few interactions between [Kumar] and the
Punjabi police.” Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005). The
nine-month discrepancy concerning the date of Kumar’s third detention is
particularly glaring. Contrary to Kumar’s contention, the IJ and BIA meaningfully
considered, and rejected, his explanation for the inconsistent statements—that he
simply forgot due to the passage of time. Therefore, we conclude that substantial
evidence supports the agency’s adverse credibility finding, which in turn supports
the denial of Kumar’s applications for asylum and withholding of removal.
Kumar argues that, even if we uphold the agency’s adverse credibility
finding, we cannot sustain the agency’s denial of his CAT claim. He contends that
the IJ relied on the adverse credibility finding with respect to his asylum
application to deny Kumar CAT protection, which we advised against in
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001), and Taha v. Ashcroft, 389
F.3d 800, 802 (9th Cir. 2004) (per curiam). It is true that the IJ and BIA relied on
the asylum-related adverse credibility to deny Kumar CAT protection. But this
was not error because, unlike in Kamalthas and Taha, the IJ and BIA did not rely
only on the adverse credibility finding. See Kamalthas, 251 F.3d at 1283; Taha,
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389 F.3d at 802. They also considered the documentary evidence Kumar
presented, which they correctly found fell short of the CAT standard. See
Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006).
PETITION DENIED.
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