Dirga Gharti v. Jefferson Sessions

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIRGA BAHADUR GHARTI, No. 15-73290
Petitioner, Agency No. A205-408-873
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2018**
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN,
District Judge.***
In removal proceedings, Petitioner Dirga Gharti sought asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”) based
*
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 Gary Feinerman, United States District Judge for the
Northern District of Illinois, sitting by designation.
on his claimed fear of persecution and torture. The immigration judge (“IJ”)
denied all three forms of relief primarily based on a finding that Gharti had not
testified credibly. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s
adverse credibility determination and denial of relief. Gharti now petitions for
review. We deny the petition.
1. “Under the REAL ID Act,” which applies to Gharti’s application, “there
is no presumption that an applicant for relief is credible.” Huang v. Holder, 744
F.3d 1149, 1152 (9th Cir. 2014). The IJ’s credibility determination is based on the
“totality of the circumstances, and all relevant factors,” including the applicant’s
“candor, or responsiveness,” the “consistency between the applicant’s . . . written
and oral statements,” and “the consistency of such statements with other evidence
of record.” 8 U.S.C. § 1158(b)(1)(B)(iii). “[A]ny inaccuracies, omissions of
detail, or inconsistencies found by the IJ, regardless of whether they go to the
‘heart’ of a petitioner’s claim, may support an adverse credibility finding.”
Tamang v. Holder, 598 F.3d 1083, 1093 (9th Cir. 2010).
“We review factual findings, including adverse credibility determinations,
for substantial evidence.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017)
(quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)). “Because
credibility determinations are findings of fact by the IJ, they ‘are conclusive unless
any reasonable adjudicator would be compelled to conclude to the contrary.’” Rizk
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v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)).
The IJ’s adverse credibility determination in this case was based on several
key points of vagueness or inconsistency in Gharti’s testimony on cross-
examination during his merits hearing. Gharti claimed that he actively supported
an anti-Maoist political party in Nepal and was threatened, robbed, and forced to
work in a labor camp by Maoists because of his political opinion and activities.
But the IJ provided a “legitimate articulable basis to question [Gharti’s]
credibility,” id. at 1088 (quoting Hartooni v. I.N.S., 21 F.3d 336, 342 (9th Cir.
1994)), finding that his testimony on cross examination was confused and
internally inconsistent, including with respect to the activities he engaged in for his
own political party, the protests that the Maoists allegedly compelled him to join,
and his alleged forced trips to a Maoist labor camp. Gharti was provided ample
opportunity to explain these inconsistencies and was unable to do so. See id.(requiring that the IJ provide such an opportunity). Substantial evidence therefore
supports the agency’s adverse credibility determination.
2. To be eligible for asylum, Gharti must demonstrate that he has a well-
founded fear of persecution on account of one or more protected grounds. 8
U.S.C. §§ 1101(a)(42), 1158(b)(1)(A). “Because [Gharti] failed to present candid,
credible and sincere testimony demonstrating a genuine fear of persecution, he
failed to satisfy the subjective component of the well-founded fear standard.”
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Mejia-Paiz v. I.N.S., 111 F.3d 720, 724 (9th Cir. 1997) (quoting Berroteran-
Melendez v. I.N.S., 955 F.2d 1251, 1257-58 (9th Cir. 1992)). Gharti’s additional
evidence is insufficient to meet his burden to show a well-founded fear of future
persecution in light of the adverse credibility determination. The agency’s denial
of asylum relief was therefore supported by substantial evidence.
3. To establish his eligibility for withholding of removal, Gharti “must show
a ‘clear probability’ of the threat to life or freedom if deported to” Nepal. Jiang v.
Holder, 754 F.3d 733, 740 (9th Cir. 2014) (quoting Tamang, 598 F.3d at 1091).
Because the standard for withholding of removal is more stringent than the well-
founded fear standard for asylum, the agency’s denial of Gharti’s withholding
claim is supported by substantial evidence as well. See id.
4. To receive CAT protection, Gharti must prove that it is “more likely than
not” that he would be tortured if removed to Nepal. 8 C.F.R. § 1208.16(c)(2). “An
adverse credibility determination is not necessarily a death knell to CAT
protection.” Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010). But to
reverse the BIA’s decision denying CAT relief, we would need to conclude that the
objective evidence “alone compelled the conclusion that [Gharti] is more likely
than not to be tortured” if he returns to Nepal. Id. at 1048-49 (quoting Almaghzar
v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006)).
Without the support of the testimony and evidence subject to the IJ’s adverse
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credibility determination, all that remains is Gharti’s country conditions evidence.
But the 2013 State Department Human Rights Report for Nepal suggests reduced
Maoist violence. Although it describes some continued violence and tolerance of
past human rights abuses, Gharti’s objective country conditions evidence does not
compel the conclusion that he is more likely than not to be tortured if he returns to
Nepal. See id.PETITION DENIED.
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