Tsembel Ochirbat v. Jefferson Sessions

FILED
NOT FOR PUBLICATION
MAR 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TSEMBEL OCHIRBAT, AKA Tsednjav No. 13-70737
Chinzoring,
Agency No. A200-884-050
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2018**
Seattle, Washington
Before: RAWLINSON and CHRISTEN, Circuit Judges, and FREUDENTHAL,***
Chief District Judge.
*
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 Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
Tsembel Ochirbat,1 a native and citizen of Mongolia, petitions for review of
a final order of removal from the Board of Immigration Appeals (BIA). The BIA
dismissed Ochirbat’s appeal of an immigration judge’s (IJ’s) order denying his
applications for asylum and withholding of removal under the Immigration and
Nationality Act and for protection under the Convention Against Torture (CAT).
1. “An IJ may grant a motion for a continuance ‘for good cause shown.’” An
Na Peng, 673 F.3d 1248, 1253 (9th Cir. 2012) (quoting 8 C.F.R. § 1003.29). The
IJ accepted as true Ochirbat’s statement that he participated as a witness in the
police investigation, even without corroboration. Ochirbat does not explain how
the nature or content of the police report would countervail the inconvenience to
the court of granting a second continuance and rescheduling his August 1, 2011
hearing so he could try to procure it. Ochirbat also sought a continuance so he
could obtain a statement by his friend describing Enkhbaatar’s inquiries about
Ochirbat’s whereabouts. But Ochirbat did not furnish any details of what his
friend’s statement would say. Whether Ochirbat would be successful in obtaining
the statement, or whether it would in fact substantiate his claims for relief was, as
the IJ concluded, “entirely speculative.” The IJ did not abuse its discretion by
1
Petitioner’s name is alternately spelled “Ochirbat” and “Orchibat”
throughout the briefing and administrative record. We use “Ochirbat” to conform
with the spelling of Petitioner’s name in the case caption.
2
denying a continuance and finding Ochirbat’s application for asylum was untimely
filed.
2. The REAL ID Act’s credibility standard governs this case. 8 U.S.C.
§ 1158(b)(1)(B)(iii). Under the REAL ID Act, an IJ must “present a reasoned
analysis of the evidence as a whole,” Zhi v. Holder, 751 F.3d 1088, 1091 (9th Cir.
2014) (internal citation and quotation marks omitted), and “provide a specific
cogent reason for the adverse credibility finding,” Lai v. Holder, 773 F.3d 966, 970
(9th Cir. 2014) (internal citation and quotation marks omitted). Under the
deferential substantial evidence standard, we may only reverse an IJ’s credibility
determination if the evidence compels a contrary result. Joseph v. Holder, 600
F.3d 1235, 1240 (9th Cir. 2010).
The IJ based his credibility finding on unexplained inconsistencies in
Ochirbat’s testimony, including Ochirbat’s equivocation when identifying how
many times Enkhbaatar allegedly threatened him and where he was when
Enkhbaatar did so. The IJ also noted that Ochirbat could not provide any details of
Enkhbaatar’s trial, nor had he offered corroborating documentation or affidavits
supporting his assertion that Enkhbaatar had become a man of prominence in
Mongolia. The adverse credibility determination was supported by substantial
evidence.
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3. Even if credited, Ochirbat’s evidence does not support his application for
withholding of removal. Ochirbat did not cite any authority suggesting that one or
two vague threats can amount to past persecution. Because his testimony does not
compel the conclusion that it is “more likely than not” he would suffer persecution
on account of his participation in a police investigation of government corruption,
substantial evidence supports the IJ’s determination that Ochirbat is ineligible for
withholding of removal. See Ling Huang v. Holder, 744 F.3d 1149, 1152, 1156
(9th Cir. 2014).
4. Because Ochirbat did not present evidence or testimony that it was “more
likely than not” the Mongolian government would torture him or acquiesce in his
torture if he returned, substantial evidence supports the BIA’s determination that
Ochirbat is ineligible for protection under CAT. See Wakkary v. Holder, 558 F.3d
1049, 1067–68 (9th Cir. 2009).
PETITION DENIED.
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