Ganbold Tsegmed v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION JUN 19 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GANBOLD TSEGMED, No. 11-73868
Petitioner, Agency No. A098-837-711
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 19, 2015**
San Francisco, California
Before: HAWKINS, PAEZ, and BERZON, Circuit Judges.
Ganbold Tsegmed, a native and citizen of Mongolia, petitions for review of
the agency’s denial of his application for asylum and withholding of removal.
Tsegmed affirmatively applied for asylum, but the asylum officer, citing
inconsistencies in his account and problems with the documentary evidence he
*
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).
submitted, referred his application to an Immigration Judge (“IJ”). After several
days of testimony, and after a forensic expert testified that much of Tsegmed’s
documentary evidence was not authentic, the IJ found him not credible, denied his
application for relief, and ordered him removed. Tsegmed appealed to the Board
of Immigration Appeals (“the Board”).
The Board dismissed his appeal, concluding that “sufficient reasons”
supported the IJ’s adverse credibility determination, and citing two examples. The
Board first cited Tsegmed’s submission of a counterfeit Mongolian driver’s
license, which Tsegmed presented in order to support his claim that he had
returned to Mongolia for a period following his initial entry into the United States,
and experienced persecution while there. The Board provided a second example
of grounds that the IJ identified that supported her adverse credibility finding:
Tsegmed’s inconsistent and confusing testimony regarding the nature and timing
of the voting fraud that he claimed to have witnessed, which formed the basis of
his asylum and withholding claims. The Board rejected Tsegmed’s argument that
misunderstandings and misinterpretations caused the discrepancies in his
testimony, as he failed to “identify specific words or parts of the transcript that
were misunderstood or mistranslated.”
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The court examines the agency’s factual findings for substantial evidence.
Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011). An adverse credibility
finding is “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003)
(quoting 8 U.S.C. § 1252(b)(4)(A)-(B)). However, in making an adverse
credibility finding, the agency “must highlight specific and cogent reasons to
support [it].” Kin v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010) (citing Alvarez-
Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003)). Additionally, reasons given
by the agency in support of its determination must be “substantial,” and not merely
“speculation and conjecture.” Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000)
(internal quotation marks omitted).
Here, the IJ supported the adverse credibility finding with multiple “specific
and cogent” reasons, of which the Board mentioned two “examples” in affirming
her decision, namely Tsegmed’s submission of counterfeit documents and his
inconsistent testimony. See Kin, 595 F.3d at 1055. The false documents at issue
were not used to flee persecution or gain entry into the United States, in which case
it would be improper to consider their inauthenticity, Gulla v. Gonzales, 498 F.3d
911, 917 (9th Cir. 2007), but were instead intended to bolster Tsegmed’s claim that
he returned to Mongolia. Tsegmed submitted his asylum application after the
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passage of the REAL ID Act, and so inconsistencies in his testimony can form the
basis of an adverse credibility finding regardless of whether they go to the heart of
his claim; because they do go to the heart of his claim, the inconsistencies are of
great weight. See Shrestha v. Holder, 590 F.3d 1034, 1046–47 (9th Cir. 2010)
(applying REAL ID Act). The IJ’s decision and the Board’s affirmance were not
based on “speculation and conjecture,” but instead supported by substantial
evidence. See Salaam, 229 F.3d at 1238.
Substantial record evidence also supports the agency’s determination that
Tsegmed failed to meet his burden of proof for relief under the Convention Against
Torture.
For the foregoing reasons, the petition for review is DENIED.
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