Tara Rai v. Loretta E. Lynch , 672 F. App'x 704 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 23 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TARA MANI RAI, No. 14-71888
Petitioner, Agency No. A098-822-383
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2016**
Before: WALLACE, LEAVY, and FISHER, Circuit Judges.
Tara Mani Rai, a native and citizen of Nepal, petitions pro se for review of
the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). Our
*
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).
jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial evidence
the agency’s factual findings applying the standards governing adverse credibility
determinations created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034,
1039-40 (9th Cir. 2010). We dismiss in part and deny in part the petition for
review.
The agency found Rai did not establish changed circumstances to excuse his
untimely-filed asylum application. We lack jurisdiction to review this finding
because the underlying facts are disputed. See Gasparyan v. Holder, 707 F.3d
1130, 1134 (9th Cir. 2013). Thus, we dismiss the petition for review as to Rai’s
asylum claim.
Substantial evidence supports the agency’s determination that Rai was not
credible based on inconsistencies between his declarations as to the year his father
fled Nepal, whether Maoists targeted him based on his support for the Nepali
Congress party, and an inconsistency between his testimony and documentary
evidence as to the contents of a letter insurgents sent. See Shrestha, 590 F.3d at
1048 (adverse credibility finding reasonable under the totality of the
circumstances). Thus, in the absence of credible testimony, in this case, Rai’s
withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156
2 14-71888
(9th Cir. 2003).
Finally, Rai’s CAT claim fails because it is based on the same testimony the
agency found not credible, and the evidence in the record does not otherwise
compel the conclusion that it is more likely than not he would be tortured by or
with the consent or acquiescence of a public official in Nepal. See Farah, 348
F.3d at 1156-57.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
3 14-71888