Manjit Kaur v. Loretta E. Lynch , 671 F. App'x 544 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
DEC 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MANJIT KAUR, No. 14-70569
Petitioner, Agency No. A076-851-683
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 13, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Manjit Kaur, a native and citizen of India, petitions for review of the Board
of Immigration Appeals’ (BIA) affirmance of an Immigration Judge’s (IJ) decision
terminating her asylum status because of fraud in her asylum application and
*
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).
denying her protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.
1. The IJ did not abuse her discretion in granting the Department of
Homeland Security’s (DHS) motion to reopen to terminate Kaur’s asylum status.
Kaur did not timely respond to the motion, and DHS made a showing of fraud in
Kaur’s asylum application. See 8 C.F.R. § 1208.24(f). DHS also properly served
Kaur at her last known address. Specifically, Kaur did not have counsel of
record—her last attorney of record was no longer authorized to practice before the
immigration courts, and Kaur’s counsel at her reopened proceedings did not file a
notice of appearance until after DHS served the motion to reopen and after Kaur
filed her untimely response. See id. § 1292.5(a); Hamazaspyan v. Holder, 590
F.3d 744, 749 & 749 n.5 (9th Cir. 2009). DHS further presented the IJ with
material evidence that was not available and discoverable at the previous hearing.
See 8 C.F.R. § 1003.2(c)(1); Ordonez v. I.N.S., 345 F.3d 777, 784–85 (9th Cir.
2003).
2. The BIA did not err in affirming the termination of Kaur’s asylum
status. The IJ permissibly drew an adverse inference based on Kaur’s refusal to
testify at the hearing. See Gutierrez v. Holder, 662 F.3d 1083, 1091 (9th Cir.
2011). Substantial evidence—Kaur’s inconsistent applications, documents, and
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testimony— supports the IJ’s decision; a reasonable factfinder would not have
been compelled to conclude otherwise. See Cole v. Holder, 659 F.3d 762, 780 (9th
Cir. 2011).
3. Substantial evidence supports the BIA’s denial of CAT relief. The IJ
could not evaluate Kaur’s credibility based on her oral testimony and could not
determine the veracity of Kaur’s documentary claims because of Kaur’s repeated
invocation of her Fifth Amendment right. The IJ accorded no evidentiary weight
to the written information provided by Kaur. Kaur does not point to any record
evidence that compels reversal of the agency’s decision. See Jiang v. Holder, 754
F.3d 733, 740–41 (9th Cir. 2014) (holding substantial evidence supported the
denial of CAT relief where the petitioner’s CAT claim was based on the same
testimony the IJ found not credible and the petitioner pointed to no other evidence
that the IJ should have considered).
PETITION FOR REVIEW DENIED.
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