Kaur v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 19 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NARINDERJIT KAUR; KARAMJIT No. 22-218
SINGH; NAVJOT KAUR,
Agency Nos. A095-559-556
Petitioners, A098-538-873
A098-133-119
v.
MERRICK B. GARLAND, U.S. Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2023**
San Francisco, California
Before: VANDYKE and SANCHEZ, Circuit Judges, and VRATIL,*** District
Judge.
Petitioners Narinderjit Kaur (Kaur), Karamjit Singh (Singh), and Navjot
Kaur (Navjot) are natives and citizens of India. Kaur and Singh are spouses 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).
***
The Honorable Kathryn H. Vratil, United States District Judge for
the District of Kansas, sitting by designation.
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Navjot is their adult daughter. They seek review of the Board of Immigration
Appeals’ (BIA) decision affirming the Immigration Judge’s (IJ) adverse
credibility determinations against Kaur and Singh.1 We have jurisdiction under
8 U.S.C. § 1252. We deny the petition.
We review adverse credibility findings for substantial evidence. Singh v.
Holder, 638 F.3d 1264, 1268–69 (9th Cir. 2011). Under that standard, our
“only question” is “whether any reasonable adjudicator” could have reached the
same conclusion as the agency. Garland v. Ming Dai, 141 S. Ct. 1669, 1678
(2021); see 8 U.S.C. § 1252(b)(4)(B); Bassene v. Holder, 737 F.3d 530, 536
(9th Cir. 2013) (“Under the substantial evidence standard, an adverse credibility
finding is conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” (internal quotation marks omitted)). Where, as here,
the BIA “conduct[ed] its own review of the evidence and law rather than
adopting the IJ’s decision, our review is limited to the BIA’s decision, except to
the extent that the IJ’s opinion is expressly adopted.” Shrestha v. Holder, 590
F.3d 1034, 1039 (9th Cir. 2010) (internal quotation marks omitted).
1
The IJ pretermitted Kaur’s application for a waiver of removability and, based
on an adverse credibility determination, denied Kaur’s application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). Kaur sought to include Singh and Navjot as derivative beneficiaries in
her denied asylum application. Petitioners did not appeal the IJ’s pretermission
of their waiver application to the BIA, nor did they appeal a separate IJ decision
finding them removable. Before this Court, Petitioners challenge only the
adverse credibility determination underlying the BIA’s denial of Kaur’s asylum,
withholding of removal, and CAT claims.
2
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Substantial evidence supported the BIA’s adverse credibility
determinations. An adverse credibility determination may be based on the
“responsiveness of the applicant or witness,” “the consistency between the
applicant’s . . . written and oral statements,” or “the consistency of such
statements with other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii); see
Alam v. Garland, 11 F.4th 1133, 1135–36 (9th Cir. 2021). The BIA noted a
significant discrepancy between Kaur’s written asylum application and the
testimony Kaur and Singh provided during their hearing before the agency in
2019. Specifically, Kaur wrote in her application and testified at the hearing
that police officers came to their house while Singh was sleeping, interrogated
him, and attempted to arrest him. Singh, meanwhile, testified that he managed
to avoid interacting with the police altogether by fleeing the house before they
arrived. The BIA observed that Kaur and Singh failed to explain the
inconsistency and refused to answer questions about it. The BIA’s decision
reflects that it considered the appropriate statutory factors under a totality of the
circumstances and reached a conclusion consistent with the evidence. See Dong
v. Garland, 50 F.4th 1291, 1297 (9th Cir. 2022) (“Inconsistencies in an
applicant’s testimony may support an adverse credibility determination.”);
Lalayan v. Garland, 4 F.4th 822, 839 (9th Cir. 2021) (upholding adverse
credibility finding based on noncitizen’s “evasiveness and non-
responsiveness”).
We reject Petitioners’ argument that the BIA upheld the IJ’s adverse
3
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credibility finding based on “speculation and conjecture.” The BIA relied on
the same inconsistencies identified by the IJ, which Petitioners declined to
address at the agency’s 2019 hearing.
PETITION DENIED.2
2
The temporary stay of removal remains in effect until issuance of the mandate.
4