Arora v. Holder , 402 F. App'x 261 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOHAMMED SUKAR ALI, Nos. 07-70672
07-72354
Petitioner,
Agency No. A095-315-421
v.
ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2010 **
Before: O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.
In these consolidated petitions for review, Mohammed Sukar Ali, a native
and citizen of Bangladesh, petitions for review of the Board of Immigration
Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s
decision denying his application for asylum, withholding of removal, protection
under the Convention Against Torture (“CAT”), and denying his motion to remand
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(No. 07-70672), and of the BIA’s order denying his motion to reopen (No. 07-
72354). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence an adverse credibility determination, Gui v. INS, 280 F.3d
1217, 1225 (9th Cir. 2002). We review for abuse of discretion the denial of a
motion to remand, Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987), and the
denial of a motion to reopen, Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th
Cir. 2005). We deny in part and dismiss in part the petition for review in No. 07-
70672. We deny the petition for review in No. 07-72354.
Even if Ali had timely filed his asylum application, substantial evidence
supports the agency’s adverse credibility determination because Ali’s asylum
application omitted the riverside attempt on his life, see Alvarez-Santos v. INS, 332
F.3d 1245, 1254 (9th Cir. 2003) (petitioner’s omission of a “dramatic pivotal
event” from his asylum application supported adverse credibility determination),
and Ali failed to corroborate his claim that he was an Ahmadi Muslim through the
procedures established by the Ahmadiyya Movement in Islam, see Sidhu v. INS,
220 F.3d 1085, 1090-92 (9th Cir. 2000) (“[I]f the trier of fact either does not
believe the applicant or does not know what to believe, the applicant’s failure to
corroborate his testimony can be fatal to his asylum application.”). In the absence
of credible testimony, Ali’s asylum and withholding of removal claims fail. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
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We lack jurisdiction to consider Ali’s CAT claim because he did not
exhaust this claim before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 677-78
(9th Cir. 2004).
The BIA did not abuse its discretion in denying Ali’s motion to remand
because Ali failed to demonstrate the additional evidence he submitted with his
motion “was not available and could not have been discovered or presented” at his
hearing. 8 C.F.R. § 1003.2(c)(1); see also Rodriguez, 841 F.2d at 867.
Finally, the BIA also did not abuse its discretion in denying Ali’s motion to
reopen because the BIA considered the evidence submitted and acted within its
broad discretion in determining Ali did not show prima facie eligibility for the
relief sought. See INS v. Abudu, 485 U.S. 94, 104-05 (1988) (the BIA may deny a
motion to reopen for failure to establish a prima facie case for the underlying relief
sought); see also Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (the BIA’s
denial of a motion to reopen shall be reversed only if it is arbitrary, irrational, or
contrary to law).
No. 07-70672: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
No. 07-72354: PETITION FOR REVIEW DENIED.
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