Babbar v. Holder , 458 F. App'x 621 ( 2011 )

FILED
NOT FOR PUBLICATION NOV 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KIRAN KAUR BABBAR and No. 07-74164
ABHISHEK BABBAR,
Agency Nos. A096-171-474
Petitioners, A096-171-492
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 October 27, 2011
San Francisco, California
Before: GRABER and IKUTA, Circuit Judges, and QUIST,** Senior District
Judge.
Petitioners, Kiran Kaur Babbar and her son Abhishek Babbar, seek review of
a decision of the Board of Immigration Appeals ("BIA") affirming and adopting an
immigration judge’s ("IJ") decision to deny their applications for asylum,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior United States District Judge for
the Western District of Michigan, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
("CAT").
1. We lack jurisdiction over the one-year bar to the asylum application
because that issue involves disputed facts. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D);
see also Hakopian v. Mukasey, 551 F.3d 843, 847 (9th Cir. 2008); Khunaverdiants
v. Mukasey, 548 F.3d 760, 765–66 (9th Cir. 2008); Ramadan v. Gonzales, 479
F.3d 646, 649–50 (9th Cir. 2007) (per curiam). We lack jurisdiction over
Petitioners’ argument that the government is estopped from relying on disputed
facts because that argument was not exhausted before the IJ or BIA. See Barron v.
Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004) ("It is a well-known axiom of
administrative law that if a petitioner wishes to preserve an issue for appeal, he
must first raise it in the proper administrative forum." (internal quotation marks
omitted)).
2. We deny the petition as to withholding of removal and CAT because the
adverse credibility finding is supported by substantial evidence. Because the BIA
adopted the IJ’s credibility analysis, citing In re Burbano, 20 I. & N. Dec. 872
(B.I.A. 1994), we review the IJ’s adverse credibility determination as if it were that
of the BIA. Rizk v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011); Aguilar-Ramos
v. Holder, 594 F.3d 701, 704 (9th Cir. 2010). Petitioners filed their applications
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for asylum before May 11, 2005, so we apply pre-REAL ID Act rules. Rizk, 629
F.3d at 1087 n.2.
"We must uphold the IJ’s adverse credibility determination so long as one of
the identified grounds is supported by substantial evidence and goes to the heart of
the alien’s claim of persecution." Id. at 1087 (internal quotation marks and
brackets omitted). "Moreover, just as repeated and significant inconsistencies can
deprive an alien’s claim of the requisite ‘ring of truth,’ so too can an inconsistency
accompanied by other indications of dishonesty . . . ." Id. at 1088 (some internal
quotation marks omitted).
Here, the IJ relied on demeanor and inconsistencies to find adverse
credibility. We give "special deference" to the demeanor finding. Jibril v.
Gonzales, 423 F.3d 1129, 1137 (9th Cir. 2005). For example, the IJ observed that
the female Petitioner "recited" statements about the key events as if they were
"memorized." The inconsistency that the IJ cited with respect to whether and when
Petitioner’s hands were tied is supported by the record. Even if no other reasons
are valid, those two in combination suffice, as they go to the heart of the claim.
Because we conclude that the IJ’s adverse credibility determination was supported
by substantial evidence, we must deny the petition.
Petition DISMISSED in part, DENIED in part.
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