FILED NOT FOR PUBLICATION JAN 31 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASIM SARWAR, No. 18-71479
Petitioner, Agency No. A208-616-883
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 10, 2022** Submission Vacated September 20, 2022 Resubmitted January 31, 2023 Portland, Oregon
Before: TALLMAN and CHRISTEN, Circuit Judges, and BLOCK,*** District Judge. Dissent by Judge BLOCK.
* 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 Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Asim Sarwar, a native and citizen of Pakistan, petitions for review of the
denial of his application for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a), and deny Sarwar’s petition.
1. We reject Sarwar’s argument that the BIA lacked jurisdiction due to a
defective notice to appear (NTA). See United States v. Bastide-Hernandez, 39
F.4th 1187, 1193–94 (9th Cir. 2022). Sarwar later received a corrected NTA and
attended his hearing. Sarwar does not present a colorable argument that he was
prejudiced by the initial, defective NTA.
2. We reject the government’s argument that we lack jurisdiction to
consider Sarwar’s petition because he did not exhaust his challenge to the IJ’s
adverse credibility finding before the BIA. While we typically lack jurisdiction to
consider issues that were not raised before the BIA, see Sola v. Holder, 720 F.3d
1134, 1135 (9th Cir. 2013), we do not apply the exhaustion doctrine in a
formalistic manner against pro se petitioners, Ren v. Holder, 648 F.3d 1079, 1083
(9th Cir. 2011). Instead, we construe pro se filings liberally. Id. Sarwar’s BIA
filings challenged the IJ’s finding that Sarwar was ineligible for asylum because
Sarwar “failed to proffer and present credible evidence of past harm in Pakistan,”
there was a “lack of evidence to support [his] application,” and he could “not
2 elaborate [his] statement correctly.” He argued that he should be provided an
opportunity to “elaborate [his] issue widely and with details.” Liberally construing
Sarwar’s filings, we conclude that Sarwar placed the BIA on notice that he was
contesting the IJ’s credibility finding. Moreover, the BIA considered the merits of
Sarwar’s challenge to the adverse credibility determination, and claims addressed
on the merits by the BIA are deemed exhausted. See, e.g., Vizcarra-Ayala v.
Mukasey, 514 F.3d 870, 874 (9th Cir. 2008).
3. We review adverse credibility determinations for substantial evidence.
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We will not disturb the
agency’s finding that a petitioner is not credible unless “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Both
the IJ and the BIA explicitly invoked the totality of the circumstances standard in
their decisions and the IJ identified specific instances in the record for its adverse
credibility determination. See Shrestha, 590 F.3d at 1042. The IJ evaluated
Sarwar’s demeanor, nonresponsive answers, and inconsistent statements. For
example, the IJ reasonably relied on Sarwar’s inconsistent statements about when
police in Pakistan broke his arm. The IJ also relied on the fact that Sarwar could
only describe what his political party stood for in vague terms and that it was
implausible that Sarwar could support himself working construction in Brazil if he
3 had broken his arm a few months earlier. We hold that the IJ’s adverse credibility
determination is supported by substantial evidence.
4. Sarwar separately argues the BIA erred by affirming the IJ’s decision
to exclude the documentary evidence he offered. The documents were excluded
for lack of foundation because Sarwar had not seen them prior to the hearing and
could not authenticate them. He argues that this was prejudicial error because the
documents could have corroborated his testimony. This overlooks that Sarwar
bore the burden to establish a foundation for the admission of the documents and
the IJ had discretion to determine whether the “balance of the evidence [was]
sufficiently compelling to satisfy him that the documents [were] what [Sarwar]
claim[ed] them to be.” Vatyan v. Mukasey, 508 F.3d 1179, 1182, 1185 (9th Cir.
2007). Because the document from the attorney his brother hired in Pakistan bore
a date that was inconsistent with Sarwar’s own sworn testimony, the IJ had reason
to doubt the veracity of the documents, and did not abuse his discretion by refusing
to admit them without a witness who could authenticate them. See Vatan, 508 F.3d
at 1182. Under these circumstances, we see no evidentiary error nor due process
violation in the IJ’s decision to exclude the records.
PETITION DENIED.
4 FILED Sarwar v. Garland, No 18-71479 JAN 31 2023 MOLLY C. DWYER, CLERK BLOCK, Senior District Judge, dissenting: U.S. COURT OF APPEALS
I agree that the BIA had jurisdiction. I further agree that Sarwar adequately
exhausted his challenge to the IJ’s adverse credibility determination.
I disagree, however, that his challenge lacks merit. The IJ relied principally
on perceived inconsistencies in Sarwar’s testimony regarding the date Pakistani
police broke his arm. While his testimony is not a model of clarity, the
inconsistencies are largely exaggerated.
Sarwar stated at his credible fear interview that his arm was broken at a
political rally on February 11, 2014. He also described a “second beating” on
August 14, 2014. He referred to both events at the merits hearing before the IJ,
along with a third incident in December 2010. On direct examination, he testified
that “because of these people I broke my arm” without referring to a specific date.
The IJ muddled the issue on cross-examination, asking Sarwar when he
broke his arm. Sarwar responded, “It happened in 2010.” The IJ then said that
Sarwar had testified earlier that it was broken on August 14, 2014; Sarwar never so
testified. Sarwar referred to “the first incident.” He did not specify which incident
he considered the first, but immediately clarified that “[t]he February one” was
“the worst.” On redirect, Sarwar described December 2010 as “a small event” and stated unequivocally that his arm was broken in “February . . . when [he] was
beaten the most.”
Sarwar consistently testified that his arm was broken when Pakistani police
beat him during a political rally. Considering his testimony in its entirety, I cannot
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FILED NOT FOR PUBLICATION JAN 31 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ASIM SARWAR, No. 18-71479
Petitioner, Agency No. A208-616-883
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted May 10, 2022** Submission Vacated September 20, 2022 Resubmitted January 31, 2023 Portland, Oregon
Before: TALLMAN and CHRISTEN, Circuit Judges, and BLOCK,*** District Judge. Dissent by Judge BLOCK.
* 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 Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. Asim Sarwar, a native and citizen of Pakistan, petitions for review of the
denial of his application for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C.
§ 1252(a), and deny Sarwar’s petition.
1. We reject Sarwar’s argument that the BIA lacked jurisdiction due to a
defective notice to appear (NTA). See United States v. Bastide-Hernandez, 39
F.4th 1187, 1193–94 (9th Cir. 2022). Sarwar later received a corrected NTA and
attended his hearing. Sarwar does not present a colorable argument that he was
prejudiced by the initial, defective NTA.
2. We reject the government’s argument that we lack jurisdiction to
consider Sarwar’s petition because he did not exhaust his challenge to the IJ’s
adverse credibility finding before the BIA. While we typically lack jurisdiction to
consider issues that were not raised before the BIA, see Sola v. Holder, 720 F.3d
1134, 1135 (9th Cir. 2013), we do not apply the exhaustion doctrine in a
formalistic manner against pro se petitioners, Ren v. Holder, 648 F.3d 1079, 1083
(9th Cir. 2011). Instead, we construe pro se filings liberally. Id. Sarwar’s BIA
filings challenged the IJ’s finding that Sarwar was ineligible for asylum because
Sarwar “failed to proffer and present credible evidence of past harm in Pakistan,”
there was a “lack of evidence to support [his] application,” and he could “not
2 elaborate [his] statement correctly.” He argued that he should be provided an
opportunity to “elaborate [his] issue widely and with details.” Liberally construing
Sarwar’s filings, we conclude that Sarwar placed the BIA on notice that he was
contesting the IJ’s credibility finding. Moreover, the BIA considered the merits of
Sarwar’s challenge to the adverse credibility determination, and claims addressed
on the merits by the BIA are deemed exhausted. See, e.g., Vizcarra-Ayala v.
Mukasey, 514 F.3d 870, 874 (9th Cir. 2008).
3. We review adverse credibility determinations for substantial evidence.
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We will not disturb the
agency’s finding that a petitioner is not credible unless “any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). Both
the IJ and the BIA explicitly invoked the totality of the circumstances standard in
their decisions and the IJ identified specific instances in the record for its adverse
credibility determination. See Shrestha, 590 F.3d at 1042. The IJ evaluated
Sarwar’s demeanor, nonresponsive answers, and inconsistent statements. For
example, the IJ reasonably relied on Sarwar’s inconsistent statements about when
police in Pakistan broke his arm. The IJ also relied on the fact that Sarwar could
only describe what his political party stood for in vague terms and that it was
implausible that Sarwar could support himself working construction in Brazil if he
3 had broken his arm a few months earlier. We hold that the IJ’s adverse credibility
determination is supported by substantial evidence.
4. Sarwar separately argues the BIA erred by affirming the IJ’s decision
to exclude the documentary evidence he offered. The documents were excluded
for lack of foundation because Sarwar had not seen them prior to the hearing and
could not authenticate them. He argues that this was prejudicial error because the
documents could have corroborated his testimony. This overlooks that Sarwar
bore the burden to establish a foundation for the admission of the documents and
the IJ had discretion to determine whether the “balance of the evidence [was]
sufficiently compelling to satisfy him that the documents [were] what [Sarwar]
claim[ed] them to be.” Vatyan v. Mukasey, 508 F.3d 1179, 1182, 1185 (9th Cir.
2007). Because the document from the attorney his brother hired in Pakistan bore
a date that was inconsistent with Sarwar’s own sworn testimony, the IJ had reason
to doubt the veracity of the documents, and did not abuse his discretion by refusing
to admit them without a witness who could authenticate them. See Vatan, 508 F.3d
at 1182. Under these circumstances, we see no evidentiary error nor due process
violation in the IJ’s decision to exclude the records.
PETITION DENIED.
4 FILED Sarwar v. Garland, No 18-71479 JAN 31 2023 MOLLY C. DWYER, CLERK BLOCK, Senior District Judge, dissenting: U.S. COURT OF APPEALS
I agree that the BIA had jurisdiction. I further agree that Sarwar adequately
exhausted his challenge to the IJ’s adverse credibility determination.
I disagree, however, that his challenge lacks merit. The IJ relied principally
on perceived inconsistencies in Sarwar’s testimony regarding the date Pakistani
police broke his arm. While his testimony is not a model of clarity, the
inconsistencies are largely exaggerated.
Sarwar stated at his credible fear interview that his arm was broken at a
political rally on February 11, 2014. He also described a “second beating” on
August 14, 2014. He referred to both events at the merits hearing before the IJ,
along with a third incident in December 2010. On direct examination, he testified
that “because of these people I broke my arm” without referring to a specific date.
The IJ muddled the issue on cross-examination, asking Sarwar when he
broke his arm. Sarwar responded, “It happened in 2010.” The IJ then said that
Sarwar had testified earlier that it was broken on August 14, 2014; Sarwar never so
testified. Sarwar referred to “the first incident.” He did not specify which incident
he considered the first, but immediately clarified that “[t]he February one” was
“the worst.” On redirect, Sarwar described December 2010 as “a small event” and stated unequivocally that his arm was broken in “February . . . when [he] was
beaten the most.”
Sarwar consistently testified that his arm was broken when Pakistani police
beat him during a political rally. Considering his testimony in its entirety, I cannot
agree that the IJ reasonably focused on some possible confusion as to the date of
the incident as a basis for rejecting Sarwar’s account.
The other grounds for the adverse credibility finding fare no better. The
majority alludes to the IJ’s statement that Sarwar described the political party he
belonged to in “vague and general” terms. On the contrary, he knew that the
December 2010 incident occurred at the party’s “annual function”; that February
11 was the anniversary of the execution of prominent Kashmiri separatist Maqbool
Bhat (whom he identified by name); and that August 14 was a “black day” for the
separatist movement because it commemorated Pakistani independence.
The majority does not mention the IJ’s reliance on Sarwar’s statement at the
border that he did not fear returning to his “home country or country of last
residence,” but this, too, was misplaced. Sarwar explained that he understood the
question to refer to Brazil, not Pakistan. That explanation is far more sensible that
the IJ’s logic that a person “who had ample time to consider he story that he was
going to present to the U.S. officials” completely forgot that he needed a story
when he arrived at the border. Finally, I cannot agree that the IJ properly excluded documents that would
have corroborated Sarwar’s testimony. Sarwar had no apparent means of
authenticating the documents, which were assembled and sent after he fled
Pakistan, but the ultimate test for the admission of documents in an immigration
proceeding is “whether the evidence is probative and its admission is
fundamentally fair.” Sanchez v. Holder, 704 F.3d 1107, 1109 (9th Cir. 2012). The
IJ suspected that the documents were created to match Sarwar’s testimony but
inconsistencies in the documents actually undermine that suspicion. Tellingly, the
IJ had no qualms admitting—and presumably considering—documents detailing
terrorist activities in Pakistan despite the complete lack of any connection to
Sarwar. This imbalance in the IJ’s approach to admissibility was, if anything,
fundamentally unfair.
For these reasons, I respectfully dissent.