DocketNumber: No. 17-60504
Citation Numbers: 912 F.3d 284
Judges: Clement, Jones, Southwick
Filed Date: 1/4/2019
Status: Precedential
Modified Date: 11/2/2022
Petitioner Maninder Singh Ghotra challenges an order by the Board of Immigration Appeals ("BIA") denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). Upon reviewing the record, we AFFIRM the BIA's decision.
BACKGROUND
Ghotra is a native and citizen of India. After conceding removability before an Immigration Judge ("IJ"), Ghotra applied for asylum, withholding of removal, and relief under CAT. Ghotra claimed that he feared persecution in India based on his Sikh faith and his membership in the Shiromani Alali Dal (Amritsar) political party (i.e. , the "Mann Party"). Specifically, he alleged that members of a rival political party had severely beaten him and threatened his life because of his affiliation with those groups. In support, Ghotra provided live testimony, affidavits from family and friends, an Indian newspaper article reporting that Ghotra had been attacked by members of a rival political party in August 2012, a doctor's note stating that Ghotra had been hospitalized for internal injuries in August 2012, and country conditions reports that documented the general hostility in India toward Sikhs and the Mann Party. After finding that Ghotra was not credible, the IJ denied relief. The BIA affirmed on that basis, citing inconsistencies between Ghotra's asylum application, in-person testimony, and affidavits submitted by his parents and a family friend. Ghotra challenges the BIA's decision that he is not eligible for relief, claiming: (1) the BIA erred in its credibility determination, and (2) the BIA erred by failing to explicitly address documentary evidence that corroborates portions of his narrative.
STANDARD OF REVIEW
Because the BIA "issued its own opinion and elaborated on its own reasoning," this court will confine its review to the BIA opinion and will not review the underlying IJ decision. Orellana-Monson v. Holder ,
*288Thus, this court will not reverse an adverse credibility determination "unless ... the evidence is so compelling that no reasonable factfinder" could find the applicant's testimony incredible. Orellana-Monson ,
DISCUSSION
Ghotra applied for asylum, withholding of removal, and relief under CAT. To qualify for asylum, an applicant must establish that he is "unable or unwilling to return to ... [and] avail himself or herself of the protection of [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion."
To qualify for withholding of removal, an applicant must establish that "it is more likely than not" that "his life or freedom would be threatened" in the proposed country of removal due to his race, religion, nationality, membership in a particular social group, or political opinion, which poses a higher bar than the "well-founded fear" standard for asylum. Efe v. Ashcroft ,
To qualify for relief under CAT, an applicant must establish that "it is more likely than not" that he would be tortured in the proposed country of removal.
I. Adverse Credibility Determination
The BIA denied Ghotra's application for asylum, withholding of removal, and relief under CAT after finding that the IJ's adverse credibility determination was not clearly erroneous in view of the inconsistencies between Ghotra's testimony, asylum application, and supporting affidavits. "As the respondent's testimony is not *289credible," the BIA reasoned, "he has failed to satisfy his burden of proof for asylum ... [and] the more stringent burden of proof to establish his eligibility for withholding of removal." Furthermore, "[a]s his application for protection under the CAT is premised on the same factual situation as his application for asylum, the respondent's non-credible testimony cannot meet his burden" for relief under CAT.
Ghotra challenges the adverse credibility determination underlying the denial of relief by attempting to reconcile the inconsistencies in his testimony. He further asserts that the cited inconsistencies cannot sustain the BIA's ruling because many of them stem from omissions rather than contradictions and none "go to the heart" of his claims. Finally, Ghotra argues that the BIA should have "consider[ed] the large amount of corroborating evidence" in the record rather than "focus[ing] on every affidavit that failed to contain all of the events testified to by Ghotra and some inconsistencies that, in the overall scheme of things, were minor." Primarily on these grounds, Ghotra claims that the BIA determination was erroneous.
This court disagrees: the BIA's adverse credibility determination is supported by substantial evidence. In its decision, the BIA catalogued numerous, specific inconsistencies in Ghotra's presentation, and it identified crucial omissions in statements submitted by Ghotra and in third parties' supporting affidavits. Put simply, the BIA supported its determination with "specific and cogent reasons derived from the record." Singh ,
Furthermore, contrary to Ghotra's assertions, the BIA did not err by relying on omissions and subsidiary contradictions in making its adverse credibility determination. The BIA "may rely on any inconsistency or omission in making an adverse credibility determination as long as the 'totality of the circumstances' establishes that an asylum applicant is not credible." Wang v. Holder ,
Although some record evidence supports Ghotra's claims for relief, the evidence does not compel a finding that, "from the totality of the circumstances, ... no reasonable fact-finder" could have found Ghotra incredible. Singh ,
II. Failure to Explicitly Consider Evidence
As an alternative basis for relief, Ghotra claims that the BIA erred by "fail[ing] to discuss any of the supporting reports and articles [he] submitted ... that corroborate his claim that there is *290anti-Sikh violence in India particularly targeting Mann Party members." Ghotra argues the BIA similarly erred by only discussing the supporting affidavits in terms of their inconsistencies and by failing to also discuss the extent to which they corroborate his claims. In this way, he concludes, the BIA improperly and selectively considered the record, omitting relevant and material evidence from its deliberations. Ghotra asks this court to remand to the BIA for further consideration in view of the allegedly omitted evidence.
Although this court will only reverse the BIA's decision if "the evidence is such that a reasonable factfinder would have to conclude" that the applicant qualifies for relief, this court "[n]evertheless ... review[s] the BIA's decision 'procedurally' to ensure that the complaining alien has received full and fair consideration of all circumstances that give rise to his or her claims." Abdel-Masieh v. INS ,
In this case, Ghotra submitted documentary evidence as "corroborat[ion]" for portions of his internally inconsistent narrative. The documents include affidavits, background reports on country conditions in India, and an Indian newspaper article reporting that Ghotra had been attacked in August 2012. Ghotra's individual narrative itself, however, continues to provide the core of his claim-and, as noted earlier, the BIA thoroughly considered the details of that narrative, finding it inconsistent and incredible. Although the documents echo portions of Ghotra's narrative, none of them resolve the inconsistencies that the BIA found so troubling. As to the background reports describing historical and contemporary anti-Sikh violence in India, Ghotra has offered no explanation for how these materials corroborate, much less independently support, his claims. Furthermore, although the newspaper article could arguably show past persecution, Ghotra did not claim that-even ignoring his inconsistent testimony-the article (or any other evidence not discussed by the BIA) independently establishes his eligibility for relief. Therefore, any argument along those lines is waived.
Given the reiterative content of the documents and the BIA's extensive credibility assessment, it cannot be said that the BIA failed to give "full and fair consideration of all circumstances that give rise to [Ghotra's] claims." Abdel-Masieh ,
*291CONCLUSION
For the foregoing reasons, we AFFIRM the BIA's decision to deny Ghotra's application for asylum, withholding of removal, and relief under CAT.
Ghotra also challenges certain findings of the IJ who initially denied his application for relief. However, because the BIA provided its own written decision explaining its reasons for affirming the IJ, the IJ's decision is not properly before this court. See Orellana-Monson ,
Ghotra's case is thus distinguishable from Iruegas-Valdez , where the applicant explicitly argued that his non-testimonial evidence independently established his eligibility for relief. See