Birdevinder Tiwana v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIRDEVINDER SINGH TIWANA; et al., No. 20-71634
Petitioners, Agency Nos. A206-594-962
A206-594-963
v. A206-594-964
A206-594-965
MERRICK B. GARLAND, Attorney
General,
MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 22, 2021**
San Francisco, California
Before: WATFORD and HURWITZ, Circuit Judges, and BAKER,*** International
Trade Judge.
Birdevinder Singh Tiwana, his wife Rawinder Kaur Tiwana, and their two
children, citizens of India, petition for review of a decision of the Board of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Immigration Appeals (“BIA”) affirming the order of an Immigration Judge (“IJ”)
denying their applications for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”). We deny the petition.
1. Substantial evidence supports the BIA’s conclusion that the IJ
committed no clear error in her adverse credibility determinations. See Yali Wang
v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017). The IJ provided “specific and
cogent reasons,” Perez-Arceo v. Lynch, 821 F.3d 1178, 1186 (9th Cir. 2016), citing
“specific instances in the record that form the basis of the adverse credibility
finding,” Tamang v. Holder, 598 F.3d 1083, 1093–94 (9th Cir. 2010).
a. First, Tiwana and Kaur each admitted to lying during the visa application
process, which “casts doubt” on their credibility. Singh v. Holder, 643 F.3d 1178,
1181 (9th Cir. 2011). Second, Tiwana provided testimony that the IJ reasonably
found to be implausible. Tiwana testified that he returned to India from Singapore
in 2009 despite a fear of persecution because police were bothering his wife and
children. Despite this, the family remained in India for several years before coming
to the United States. “It is well established in this court that an alien’s history of
willingly returning to his or her home country militates against a finding of past
persecution or a well-founded fear of future persecution.” Loho v. Mukasey, 531
F.3d 1016, 1017–18 (9th Cir. 2008). Tiwana also testified that he had applied for
his children’s passports when the family had no intention of international travel,
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because he and his wife already had passports. Because the passports were obtained
soon after Tiwana was allegedly released from custody, the IJ found this explanation
implausible. See Lalayan v. Garland, 4 F.4th 822, 836–37 (9th Cir. 2021) (An “IJ’s
implausibility finding will ultimately hinge on the application of a reasonable
evaluation of the testimony and evidence based on common sense.”).
b. These findings, considered in the “totality of the circumstances,” provide
substantial evidence to support the IJ’s adverse credibility determination. Alam v.
Garland, 11 F.4th 1133, 1137 (9th Cir. 2021) (en banc). The record does not compel
a contrary conclusion. See Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011).
2. In the absence of their rejected testimony, petitioners have not satisfied
their burden to show persecution, a well-founded fear of future persecution, or likely
torture if forced to return to India. See id. at 1091; Almaghzar v. Gonzales, 457 F.3d
915, 922–23 (9th Cir. 2006). The BIA did not err in concluding that petitioners’
affidavits were of limited probative value. See Mukulumbutu v. Barr, 977 F.3d 924,
927 (9th Cir. 2020). Nor did the documentary evidence establish entitlement to
relief.
PETITION DENIED.
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