Kaur v. Holder , 399 F. App'x 158 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 18 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SATWANT KAUR; RAMANDEEP No. 06-71607
KAUR; RAJVIR KAUR; SIRA SINGH,
Agency Nos. A079-606-745
Petitioners, A079-606-746
A079-606-747
v. A075-304-674
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM*
Respondent.
RAMANDEEP KAUR; RAJVIR KAUR; No. 06-73437
SIRA SINGH,
Agency Nos. A079-606-745
Petitioners, A079-606-746
A079-606-746
v. A079-606-747
A075-304-674
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted July 15, 2010
San Francisco, California
Before: W. FLETCHER and M. SMITH, Circuit Judges, and TODD,**
Senior District Judge.
Satwant Kaur and her family are citizens of India who entered the United
States without being admitted or paroled. Kaur petitions for review of the Board of
Immigration Appeals’ (BIA’s) final removal order affirming the Immigration
Judge (IJ). This court has jurisdiction under 8 U.S.C. § 1252. We deny the
petition for review.
We reject Kaur’s arguments that the IJ denied her a full and fair hearing in
violation of her due process rights. Kaur presents no evidence to support her claim
that the IJ was biased against her. Regardless, she failed to raise this argument in
her appeal to the BIA, and it is therefore waived. See Moran v. Ashcroft, 395 F.3d
1089, 1094 n.3 (9th Cir. 2005) (overruled on other grounds). The unavailability of
Kashmir Singh Malhir to testify at Kaur’s hearing did not violate her due process
rights. See Saidane v. INS, 129 F.3d 1063, 1065 (9th Cir. 1997) (requiring
government only to “make a reasonable effort in INS proceedings to afford the
alien a reasonable opportunity to confront the witnesses against him or her”
**
The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
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(quotation marks omitted)). In any event, Kaur cannot show that she was
prejudiced by her inability to examine Malhi. See Campos-Sanchez v. INS, 164
F.3d 448, 450 (9th Cir. 1999) (“This court has found prejudice where an alien’s
rights are violated in a manner so as potentially to affect the outcome of the
proceedings.” (internal quotation marks omitted)). Kaur likewise has failed to
demonstrate prejudice from her inability to obtain the entire agency files regarding
her case prior to her hearing. Finally, it was not an abuse of discretion for the IJ to
refuse to admit Kaur’s polygraph examination as evidence. See United States v.
Benavidez-Benavidez, 217 F.3d 720, 724 (9th Cir. 2000) (holding that district
courts have wide discretion in admitting or excluding polygraph evidence).
It was not an abuse of discretion for the BIA to affirm the IJ’s denial of
asylum. “In light of the uncontested evidence that [Kaur] perpetrated fraud
throughout h[er] immigration proceedings, the BIA’s discretionary denial is neither
‘manifestly contrary to the law [nor] an abuse of discretion.’” Hosseini v.
Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting 8 U.S.C. § 1252(b)(4)(D)).
Finally, the BIA did not abuse its discretion in affirming the IJ’s denial of
withholding of removal. The IJ’s adverse credibility determination was supported
by substantial evidence. Kaur has admitted not only that she submitted a
fraudulent asylum application (along with fraudulent affidavits), but also that she
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lied in her original testimony before the Asylum Officer and the IJ. See
Hosseini, 471 F.3d at 960 n.7. Also, Kaur’s subsequent testimony regarding her
second asylum story included significant inconsistencies and was not supported by
any corroborating documents. The BIA did not err as a matter of law in denying
Kaur relief under the Convention Against Torture solely on the basis of the adverse
credibility finding. Kaur did not present any evidence in support of her claim
outside of her testimony. See Farah v. Ashcroft, 348 F.3d 1153, 1156–57 (9th Cir.
2003).
PETITION DENIED.
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