Rengifo-Chumbe v. Holder , 380 F. App'x 640 ( 2010 )

FILED
NOT FOR PUBLICATION MAY 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ARTURO RENGIFO-CHUMBE; No. 03-73254
ARTURO ALBERTO RENGIFO-
AVENDANO; EMPARATRIZ GLADYS Agency Nos.
AVENDANO-DE RENGIFO, A029-925-434
A029-925-433
Petitioners, A029-925-435
A029-925-436
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
ARTURO RENGIFO CHUMBE; No. 04-71410
ARTURO ALBERTO RENGIFO
AVENDANO; EMPARATRIZ GLADYS Agency Nos.
AVENDANO DE RENGIFO; RICHARD A029-925-434
HENRY RENGIFO AVENDANO, A029-925-433
A029-925-435
Petitioners, A029-925-436
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 10, 2010
San Francisco, California
Before: HUG, RYMER and McKEOWN, Circuit Judges.
Arturo Rengifo-Chumbe (“Petitioner”), his wife, Emparatriz Rengifo, and
their son, Arturo Alberto, all natives and citizens of Peru, appeal the Board of
Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s denial of
their application for asylum and withholding of removal and the BIA’s denial of
their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review
for substantial evidence an adverse credibility determination. Gui v. INS, 280 F.3d
1217, 1225 (9th Cir. 2002). We review for abuse of discretion the denial of a
motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We
deny the petition for review.
Substantial evidence supports the BIA’s adverse credibility determination.
Because Petitioner provided inconsistent statements regarding whether the Shining
Path fired gunshots at him and whether a threat was made by the Shining Path in
1999, the adverse credibility finding is supported. See Don v. Gonzales, 476 F.3d
738, 741 (9th Cir. 2007) (holding that an inconsistency going to the heart of alien’s
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claim supported an adverse credibility finding); Singh v. Ashcroft, 367 F.3d 1139,
1143 (9th Cir. 2004) (upholding adverse credibility finding based on
inconsistencies). Without credible testimony, the asylum and withholding of
removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
The BIA did not abuse its discretion in denying the motion to reopen
because the evidence that was presented to the BIA was not newly discovered
evidence which could not have been previously presented. See 8 C.F.R. §
1003.2(c)(1); Ramon-Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir. 1984)
(holding that birth certificate was not newly discovered evidence that could not
have been previously presented).
The BIA’s mistaken reference to India does not require remand because the
BIA repeatedly referred to Peru and the Shining Path and the BIA’s reference was
a clerical error which was harmless. See Chowdhury v. INS, 249 F.3d 970, 973 n.2
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(9th Cir. 2001). The BIA also did not err in failing to consider new evidence of
country conditions because it was not relevant on appeal.1
PETITION DENIED.
1
Counsel for Rengifo submitted a letter to the panel dated May 14, 2010,
which attached letters that were not in the certified administrative record. We do
not consider extra-record evidence on appeal absent unusual circumstances. Lowry
v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Even if we considered this
evidence as an “inadvertent omission[] from the record,” which may warrant our
consideration of the evidence, Lowry, 329 F.3d at 1024, this evidence is not
probative of what medication Rengifo was taking at the time of his immigration
hearing, which is the relevant question in this petition.
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