Kumar v. Holder ( 2010 )

FILED
NOT FOR PUBLICATION DEC 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VIKAS KUMAR, No. 06-75556
Petitioner, Agency No. A097-620-777
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 10, 2010
San Francisco, California
Before: HUG, D.W. NELSON, and McKEOWN, Circuit Judges.
Vikas Kumar (“Kumar”) appeals the decision of the Board of Immigration
Appeals (“BIA”) affirming an Immigration Judge’s (“IJ”) denial of his claims for
asylum, withholding of removal, and relief under the Convention Against Torture.
Specifically, Kumar claims that the BIA erred in affirming both the IJ’s adverse
credibility determination and the IJ’s finding that, regardless of credibility, he did
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
not have a well-founded fear of future persecution. We have jurisdiction pursuant
to 8 U.S.C. § 1252, and we deny Kumar’s petition in its entirety.
This Court reviews credibility determinations and denials of asylum for
substantial evidence. Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (citing
Baballah v. Ashcroft, 335 F.3d 981, 987 (9th Cir. 2003)). A credibility
determination “must be supported by a specific, cogent reason,” and it will be
“upheld so long as identified inconsistencies go to the heart of the asylum claim.”
Id. (internal quotations omitted).1
Here, the BIA pointed to substantial evidence in the record regarding
Kumar’s “failure to establish his identity; inconsistencies in the documents he
submitted; inconsistent statements about the documents and his procurement of
them; and failure to provide reasonably verifiable and obtainable corroborating
evidence.” Among other errors and omissions, the IJ pointed to Kumar’s failure to
present an original copy of his passport or birth certificate, various mistakes
regarding his father’s name in the documents he did provide, including his school
records, and discrepancies in Kumar’s testimony as to when he allegedly applied
for and received his passport in the first instance. These inconsistencies
1
This case involves a Pre-REAL ID Act application. Kumar applied for
asylum in the United States on or about March 12, 2004.
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undoubtedly go to the heart of Kumar’s asylum claim, because they concern his
identity. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003) (holding that
eligibility for asylum depends on the credible establishment of “key” elements,
including identity). They also bear on Kumar’s enrollment in school, which was
his only association with an alleged militant.
In circumstances such as these, where an “applicant’s credibility is in
question, and he or she fails to produce evidence that is non-duplicative, material,
and easily available[,] the IJ or BIA may make an adverse credibility finding.”
Guo v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004) (internal quotations omitted).
Kumar’s failure to produce corroborating evidence is coupled with errors and
inconsistencies that go to the heart of his asylum claim. Therefore, the IJ’s adverse
credibility finding was supported by substantial evidence.
Substantial evidence also supports the BIA’s determination that, regardless
of Kumar’s credibility, his alleged fear of future persecution in India was
successfully rebutted by the government. Here, the agency cited to evidence that
relocation within India is a safe and reasonable alternative to asylum, see Mashiri
v. Ashcroft, 383 F.3d 1112, 1122 (9th Cir. 2004) (citations omitted), including the
observation that Kumar had voluntarily lived in Delhi without difficulties from the
police, and information from the U.K. and Danish Country Reports for India
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indicating that the local police would not have the means to track a low profile
person upon repatriation to another part of India. The BIA also pointed out that
Kumar’s father, who was arrested with him in 2002, has continued to live in
Haryana without incident. These factors alone constitute substantial evidence.
Petition for review DENIED.
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