Malak Manes v. Jefferson Sessions , 875 F.3d 1261 ( 2017 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MALAK MANES, No. 14-73313
Petitioner,
Agency No.
v. A201-106-391
JEFFERSON B. SESSIONS III, Attorney
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 12, 2017
San Francisco, California
Filed November 27, 2017
Before: J. Clifford Wallace, A. Wallace Tashima,
and Paul J. Watford, Circuit Judges.
Per Curiam Opinion
2 MANES V. SESSIONS
SUMMARY*
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ decision affirming an immigration
judge’s adverse credibility determination and denial of
asylum, withholding of removal, and protection under the
Convention Against Torture.
The panel held that substantial evidence supported the IJ’s
denial of asylum and withholding of removal relief on
adverse credibility grounds, concluding that the IJ’s
demeanor findings were sufficiently specific, and the Board
and IJ provided specific and cogent reasons for why
inaccuracies in the documentary evidence, and
inconsistencies between petitioner’s statements and other
evidence of record, undermined his credibility.
The panel held that there was sufficient evidence that the
Board considered the country conditions reports, and that
substantial evidence supported the Board’s determination that
the objective evidence of record alone was insufficient to
establish eligibility for CAT relief.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
MANES V. SESSIONS 3
COUNSEL
Morgan Russell (argued), Anne E. Peterson, and Robert Jobe,
Law Office of Robert B. Jobe, San Francisco, California, for
Petitioner.
Andrew B. Insenga (argued), Trial Attorney; Douglas E.
Ginsburg, Assistant Director; Office of Immigration
Litigation, Civil Division, United States Department of
Justice, Washington, D.C.; for Respondent.
OPINION
PER CURIAM:
Malak Manes, a native and citizen of India, petitions for
review of the Board of Immigration Appeals’ (Board) order
affirming an immigration judge’s (IJ) denial of his
applications for asylum, withholding of removal, and
protection under the Convention Against Torture (CAT).
Manes argues that he was persecuted in India because of his
support for the India National Order Lok Dal (INLD), one of
the country’s opposition political parties. We have
jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny Manes’
petition.
The Board affirmed the IJ’s denial of relief on the basis
of the IJ’s adverse credibility determination. “Because
credibility determinations are findings of fact by the IJ, they
‘are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.’” Rizk v. Holder,
629 F.3d 1083, 1087 (9th Cir. 2011) (quoting 8 U.S.C.
§ 1252(b)(4)(B)). We afford a “healthy measure of deference
4 MANES V. SESSIONS
to agency credibility determinations,” mindful that “IJs are in
the best position to assess demeanor and other credibility cues
that we cannot readily access [sic] on review.” Shrestha v.
Holder, 590 F.3d 1034, 1041 (9th Cir. 2010).
Under the REAL ID Act, which applies here, “there is no
presumption that an applicant for relief is credible, and the IJ
is authorized to base an adverse credibility determination on
‘the totality of the circumstances’ and ‘all relevant factors.’”
Ling Huang v. Holder, 744 F.3d 1149, 1152–53 (9th Cir.
2014) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii)). Such factors
include the alien’s “demeanor, candor, or responsiveness.”
8 U.S.C. § 1158(b)(1)(B)(iii). Demeanor findings “should
specifically point out the noncredible aspects of the
petitioner’s demeanor.” Shrestha, 590 F.3d at 1042. The IJ
may also consider inconsistencies between the petitioner’s
statements and other evidence of record. 8 U.S.C.
§ 1158(b)(1)(B)(iii). “When an inconsistency is cited as a
factor supporting an adverse credibility determination, that
inconsistency should not be a mere trivial error such as a
misspelling, and the petitioner’s explanation for the
inconsistency, if any, should be considered in weighing
credibility.” Shrestha, 590 F.3d at 1044 (citations omitted).
Regardless of the factors relied upon by the IJ, the IJ must
provide “specific and cogent reasons” to support an adverse
credibility determination. Id. at 1042.
Here, the IJ properly considered the totality of the
circumstances and supported her adverse credibility
determination with specific and cogent reasons. Manes fails
to show that the evidence of record compels a contrary result.
We reject Manes’ argument that the IJ’s demeanor
findings were insufficiently precise. The IJ stated that Manes
MANES V. SESSIONS 5
was “visibly nervous” when confronted with evidence that
contradicted his claim and “would move his hands to the
extent that his bracelets would make a noise.” The IJ also
found that Manes’ speech was “notably faster” and “had an
almost desperate tone” when Manes was responding to
confrontations or difficult questions. Moreover, the IJ
explained that Manes’ anxious demeanor on cross-
examination was “in sharp contrast” to his “calm and
measured” demeanor on direct, characterizing the contrast as
“remarkable.” These are specific, first-hand
observations—precisely the kind of credibility cues that are
the special province of the factfinder. Given the IJ’s unique
ability to assess first-hand a petitioner’s demeanor, “it would
be extraordinary for a reviewing court to substitute its
second-hand impression of the petitioner’s demeanor . . . for
that of the IJ.” Jibril v. Gonzales, 423 F.3d 1129, 1137 (9th
Cir. 2005).
Manes contends that the IJ should have commented on
Manes’ demeanor and credibility at the time of occurrence, so
that the transcript would reflect the exact moments during the
hearing when the IJ was assessing Manes’ demeanor. It is
true that in some of our cases a hearing transcript has
provided evidence supporting an IJ’s demeanor findings. See,
e.g., Huang, 744 F.3d at 1154–56. But our case law does not
require the IJ to conduct a running commentary on the alien’s
credibility. See Paredes-Urrestarazu v. U.S. INS, 36 F.3d
801, 818 (9th Cir. 1994) (“We certainly cannot expect that the
factual basis for eye-witness observations always will find
support in the hearing transcript.”). In fact, we have indicated
that an IJ can meet the IJ’s obligation to provide “specific
examples” of the petitioner’s demeanor by making “explicit
reference to particular unrecorded aspects of demeanor,” Kin
v. Holder, 595 F.3d 1050, 1056 (9th Cir. 2010), including
6 MANES V. SESSIONS
“the expression of [the petitioner’s] countenance, how he sits
or stands, whether he is inordinately nervous, his coloration
during critical examination, the modulation or pace of his
speech and other non-verbal communication.” Huang,
744 F.3d at 1153 (quoting Shrestha, 590 F.3d at 1042). These
are precisely the aspects of Manes’ demeanor the IJ
referenced here. Thus, the IJ’s demeanor findings were
sufficiently specific and supported by substantial evidence.
We also reject Manes’ argument that the Board did not
have substantial evidence to conclude that inconsistencies
between his testimony and the documentary evidence of
record undermined his credibility. Manes testified he received
stitches on his left hand after a March 2009 attack by a knife-
wielding assailant. However, Manes submitted a letter
purporting to be from the doctor in India who treated him
after the March 2009 attack that states only that Manes
suffered injuries to his “left arm and left shoulder” and
received stitches on his left arm. There is no mention of
“hand” in the doctor’s letter. This inconsistency bears directly
on Manes’ claim of persecution, thus permitting the Board to
afford it substantial weight. Shrestha, 590 F.3d at 1046–47
(“Although inconsistencies no longer need to go to the heart
of the petitioner’s claim, when an inconsistency is at the heart
of the claim it doubtless is of great weight.”).
Manes argues this inconsistency cannot support an
adverse credibility determination because the doctor’s letter
is not reliable. We disagree. Manes himself submitted the
document to support his claim. The IJ considered the letter
along with the other evidence of record and identified an
inconsistency between Manes’ testimony and the letter. This
is precisely the procedure the IJ is expected to follow when
considering the totality of the circumstances. See 8 U.S.C.
MANES V. SESSIONS 7
§ 1158(b)(1)(B)(iii). Manes cannot dispel an inconsistency
between his testimony and the evidence of record by
attempting to discredit the reliability of his own evidence
after the fact. Here, the inconsistency between Manes’
testimony and the doctor’s letter concerning the nature of
Manes’ only documented physical injury is a specific and
cogent reason supporting the IJ’s adverse credibility
determination.
Substantial evidence also supports the Board and the IJ’s
determination that issues with Manes’ other documentary
evidence undermined his credibility. For example, a letter
purportedly from an INLD district party chief contained a
handwritten edit to the organization’s email address. In
addition, the INLD voter roster submitted by Manes listed
him as a 25-year-old female, rather than his actual age and
gender, a 22-year-old male. Of course, “an utterly trivial
inconsistency, such as a typographical error, will not by itself
form a sufficient basis for an adverse credibility
determination.” Shrestha, 590 F.3d at 1043. But the INLD
letter and voter roster speak directly to Manes’ claimed basis
for persecution—that is, his support of, and membership in,
the INLD. Given the relevance of these documents to Manes’
claim, even minor issues with the documents may be given
substantial weight by the Board. Id. at 1046–47.
In sum, the Board’s conclusion that the IJ properly denied
Manes’ asylum and withholding of removal claims on
adverse credibility grounds is supported by substantial
evidence. The IJ’s demeanor findings were sufficiently
specific, and the Board and IJ provided specific and cogent
reasons for why inaccuracies in Manes’ documentary
evidence, and inconsistencies between Manes’ statements and
other evidence of record, undermined his credibility. Because
8 MANES V. SESSIONS
the Board’s adverse credibility determination is supported by
substantial evidence, Manes cannot satisfy his burden of
proving he is eligible for asylum and withholding of removal.
Finally, we reject Manes’ argument that the Board’s
denial of his application for protection under the CAT must
be reversed because the Board did not fully understand the
country conditions evidence of record. The Board specifically
determined that “[i]n light of the adverse credibility finding,
the objective evidence of record alone is insufficient” to
demonstrate Manes’ entitlement to CAT protection.
(Emphasis added). The Board then cited the portion of our
decision in Shrestha discussing the relevance of country
conditions reports to a CAT claim. This is sufficient evidence
that the Board considered the reports. The reports themselves
discuss episodes of ethnic and communal violence in various
regions of India, police abuses of power, and incidents where
government security forces allegedly tortured insurgents and
alleged terrorists. This evidence falls far short of compelling
the conclusion that Manes is more likely than not to be
tortured if he returns to India. See Dhital v. Mukasey,
532 F.3d 1044, 1051–52 (9th Cir. 2008) (explaining that State
Department reports alone will compel the conclusion that a
petitioner is more likely than not to be tortured only where
the reports demonstrate the petitioner would face a
“particularized threat” of torture if returned). Therefore, the
Board’s determination that Manes is not entitled to protection
under the CAT is supported by substantial evidence.
For the foregoing reasons, Manes’ petition for review of
the Board’s decision is DENIED.