Kumar v. Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 11 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANKUSH KUMAR, No. 22-1124
Petitioner, Agency No. A216-274-177
v.
MEMORANDUM*
MERRICK B. GARLAND, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 09, 2023 **
San Francisco, California
Before: CHRISTEN and BRESS, Circuit Judges, and ANTOON,*** District
Judge.
The Board of Immigration Appeals (BIA) dismissed Ankush Kumar’s
appeal of an Immigration Judge’s (IJ) denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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 John Antoon II, United States District Judge for the
Middle District of Florida, sitting by designation.
(CAT). Kumar, a native and citizen of India, now petitions for review. We
have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
Where, as here, “[t]he BIA conducted its own review of the evidence and
law rather than simply adopting the [IJ]’s decision[,] . . . our review ‘is limited
to the BIA’s decision, except to the extent the IJ’s opinion is expressly
adopted.’” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (quoting
Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000)). We review “factual
findings, including adverse credibility determinations, for substantial evidence.”
Mairena v. Barr, 917 F.3d 1119, 1123 (9th Cir. 2019) (per curiam). Under the
substantial evidence standard, “administrative findings of fact are conclusive
unless any reasonable adjudicator would be compelled to conclude to the
contrary.” 8 U.S.C. § 1252(b)(4)(B).
1. The agency’s adverse credibility determination is supported by
substantial evidence. Kumar testified before the IJ about several threatening
incidents that he did not mention in his asylum application or supporting
declaration. As noted by the agency, the omission of those events from his
application and declaration was not merely an omission of minor details.
Kumar’s testimony about those events instead presented “new allegations that
tell a ‘much different—and more compelling—story of persecution than [the]
initial application.’” Silva-Pereira v. Lynch, 827 F.3d 1176, 1185 (9th Cir.
2016) (alteration in original) (quoting Zamanov v. Holder, 649 F.3d 969, 974
(9th Cir. 2011)). Those and other omissions thus support the adverse credibility
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determination. See id. And Kumar does not challenge the agency’s assessment
that his testimony was vague even when he was urged by the IJ to provide
further details. Considering the totality of the circumstances, the record does
not compel a contrary credibility determination.
2. To the extent Kumar argues that he established eligibility for asylum
or withholding of removal through other evidence in the absence of credible
testimony, substantial evidence supports the agency’s conclusion that he did
not. And in his appeal to the BIA, Kumar waived any argument that he
established entitlement to CAT protection without his testimony being found
credible.
PETITION DENIED.
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