NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BEHNOOSH ASHTARI, No. 18-72355
Petitioner, Agency No. A055-198-566
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 17, 2021** San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,*** District Judge.
Behnoosh Ashtari, a native and citizen of Iran, petitions for review of the
Board of Immigration Appeals’s (“BIA”) dismissal of Ashtari’s appeal from an
* 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 Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). Ashtari sought relief from removal
based on her religious beliefs. Because the parties are familiar with the facts, we do
not recite them here. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny
the petition.
Where, as here, the BIA adopts and affirms the IJ’s decision, we review both
decisions. Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). We review
the agency’s rulings on questions of law de novo and factual findings, including
credibility determinations, for substantial evidence. Qiu v. Barr, 944 F.3d 837, 842
(9th Cir. 2019).
1. Ashtari first challenges the IJ’s adverse credibility determination.
“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 v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (internal quotation marks and
citation omitted). When determining whether a witness is credible, a factfinder must
consider “the totality of circumstances, and all relevant factors.” Shrestha v. Holder,
590 F.3d 1034, 1040 (9th Cir. 2010) (citation omitted). These factors include
“demeanor, candor, responsiveness of the applicant or witness, the inherent
plausibility of the applicant or witness’s account, consistency between the applicant
or witness’s written and oral statements, internal consistency of each statement, and
2 consistency of statements with other evidence.” Id. IJs must “provide specific and
cogent reasons in support of an adverse credibility determination,” and refer to
particular instances in the record supporting their conclusions. Id. at 1044 (quoting
Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)). The IJ did so here.
The IJ referred to his earlier determination that Ashtari had not testified
credibly about her political activism in concluding that Ashtari’s subsequent
testimony about her conversion from Islam to Christianity was not credible. This
was permissible under the falsus in uno, falsus in omnibus principle, which “allows
a fact-finder to disbelieve a witness’s entire testimony” if the witness makes material
misrepresentations in one aspect of her testimony. Li v. Holder, 738 F.3d 1160, 1163
(9th Cir. 2013); cf. Yang v. Lynch, 822 F.3d 504, 508 (9th Cir. 2016) (explaining that
on remand, an IJ “could apply the falsus maxim based on [the petitioner’s] prior
testimony and find that [the petitioner’s] new story is not credible”). In addition, the
IJ cited specific instances in which Ashtari’s declaration and hearing testimony
about her religious conversion were vague and evasive.1 Therefore, the BIA did not
1 Ashtari’s argument that the IJ erred in doing so, based on Grava v. INS, 205 F.3d 1177 (9th Cir. 2000), is unpersuasive. In Grava, we held that a noncitizen “need not testify on his or her own behalf, except to swear the truth of the application [for asylum], and may rest on the application alone, subject to [DHS] examination at the hearing.” Id. at 1180. The IJ did not make an adverse credibility finding merely because Ashtari had chosen not to testify on direct examination, nor did he commit the error Grava prohibits—refusing to admit the declaration of a non-testifying applicant for relief. See id. Instead, the IJ permissibly relied in part on Ashtari’s
3 err in upholding the IJ’s adverse credibility finding, which was supported by
substantial evidence. See Shrestha, 590 F.3d at 1048.
It follows that the agency did not err in denying Ashtari’s requests for asylum
and withholding of removal, which were both based on Ashtari’s assertion that she
had converted to Christianity. See Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th
Cir. 2020). Although the IJ noted that witness Hugo Gudino had testified that he
knew Ashtari from their church, the IJ determined that his testimony did not establish
that Ashtari had sincerely converted or that she would practice Christianity in Iran.
Gudino admitted he did not know anything about Ashtari except that she served as
a volunteer and he had not spoken with Ashtari about her religious beliefs. Absent
credible testimony from Ashtari about her conversion, the record does not compel a
contrary conclusion. See Rizk, 629 F.3d at 1087.
2. In addition, Ashtari challenges the agency’s denial of CAT protection.
An adverse credibility determination does not necessarily defeat a CAT claim.
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001). But where a petitioner’s
CAT claim is based on “the same statements . . . that the BIA [or IJ] determined to
be not credible,” and there is no additional evidence in the record establishing that
the petitioner would be tortured in the country of removal, the agency may reject the
lack of responsiveness on cross-examination in determining Ashtari’s account of her religious conversion was not credible.
4 CAT claim as well. Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). In
other words, when the agency determines that a petitioner was not a credible witness
and discredits her testimony, the other evidence alone must compel the conclusion
that the petitioner is more likely than not to be tortured. Shrestha, 590 F.3d at 1048–
49. Here, because the record evidence alone does not compel the conclusion that
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 23 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
BEHNOOSH ASHTARI, No. 18-72355
Petitioner, Agency No. A055-198-566
v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted March 17, 2021** San Francisco, California
Before: MURGUIA and CHRISTEN, Circuit Judges, and LEFKOW,*** District Judge.
Behnoosh Ashtari, a native and citizen of Iran, petitions for review of the
Board of Immigration Appeals’s (“BIA”) dismissal of Ashtari’s appeal from an
* 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 Joan H. Lefkow, United States District Judge for the Northern District of Illinois, sitting by designation. Immigration Judge’s (“IJ”) denial of asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). Ashtari sought relief from removal
based on her religious beliefs. Because the parties are familiar with the facts, we do
not recite them here. We have jurisdiction under 8 U.S.C. § 1252(a), and we deny
the petition.
Where, as here, the BIA adopts and affirms the IJ’s decision, we review both
decisions. Joseph v. Holder, 600 F.3d 1235, 1239–40 (9th Cir. 2010). We review
the agency’s rulings on questions of law de novo and factual findings, including
credibility determinations, for substantial evidence. Qiu v. Barr, 944 F.3d 837, 842
(9th Cir. 2019).
1. Ashtari first challenges the IJ’s adverse credibility determination.
“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 v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (internal quotation marks and
citation omitted). When determining whether a witness is credible, a factfinder must
consider “the totality of circumstances, and all relevant factors.” Shrestha v. Holder,
590 F.3d 1034, 1040 (9th Cir. 2010) (citation omitted). These factors include
“demeanor, candor, responsiveness of the applicant or witness, the inherent
plausibility of the applicant or witness’s account, consistency between the applicant
or witness’s written and oral statements, internal consistency of each statement, and
2 consistency of statements with other evidence.” Id. IJs must “provide specific and
cogent reasons in support of an adverse credibility determination,” and refer to
particular instances in the record supporting their conclusions. Id. at 1044 (quoting
Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)). The IJ did so here.
The IJ referred to his earlier determination that Ashtari had not testified
credibly about her political activism in concluding that Ashtari’s subsequent
testimony about her conversion from Islam to Christianity was not credible. This
was permissible under the falsus in uno, falsus in omnibus principle, which “allows
a fact-finder to disbelieve a witness’s entire testimony” if the witness makes material
misrepresentations in one aspect of her testimony. Li v. Holder, 738 F.3d 1160, 1163
(9th Cir. 2013); cf. Yang v. Lynch, 822 F.3d 504, 508 (9th Cir. 2016) (explaining that
on remand, an IJ “could apply the falsus maxim based on [the petitioner’s] prior
testimony and find that [the petitioner’s] new story is not credible”). In addition, the
IJ cited specific instances in which Ashtari’s declaration and hearing testimony
about her religious conversion were vague and evasive.1 Therefore, the BIA did not
1 Ashtari’s argument that the IJ erred in doing so, based on Grava v. INS, 205 F.3d 1177 (9th Cir. 2000), is unpersuasive. In Grava, we held that a noncitizen “need not testify on his or her own behalf, except to swear the truth of the application [for asylum], and may rest on the application alone, subject to [DHS] examination at the hearing.” Id. at 1180. The IJ did not make an adverse credibility finding merely because Ashtari had chosen not to testify on direct examination, nor did he commit the error Grava prohibits—refusing to admit the declaration of a non-testifying applicant for relief. See id. Instead, the IJ permissibly relied in part on Ashtari’s
3 err in upholding the IJ’s adverse credibility finding, which was supported by
substantial evidence. See Shrestha, 590 F.3d at 1048.
It follows that the agency did not err in denying Ashtari’s requests for asylum
and withholding of removal, which were both based on Ashtari’s assertion that she
had converted to Christianity. See Aguilar Fermin v. Barr, 958 F.3d 887, 892 (9th
Cir. 2020). Although the IJ noted that witness Hugo Gudino had testified that he
knew Ashtari from their church, the IJ determined that his testimony did not establish
that Ashtari had sincerely converted or that she would practice Christianity in Iran.
Gudino admitted he did not know anything about Ashtari except that she served as
a volunteer and he had not spoken with Ashtari about her religious beliefs. Absent
credible testimony from Ashtari about her conversion, the record does not compel a
contrary conclusion. See Rizk, 629 F.3d at 1087.
2. In addition, Ashtari challenges the agency’s denial of CAT protection.
An adverse credibility determination does not necessarily defeat a CAT claim.
Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001). But where a petitioner’s
CAT claim is based on “the same statements . . . that the BIA [or IJ] determined to
be not credible,” and there is no additional evidence in the record establishing that
the petitioner would be tortured in the country of removal, the agency may reject the
lack of responsiveness on cross-examination in determining Ashtari’s account of her religious conversion was not credible.
4 CAT claim as well. Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003). In
other words, when the agency determines that a petitioner was not a credible witness
and discredits her testimony, the other evidence alone must compel the conclusion
that the petitioner is more likely than not to be tortured. Shrestha, 590 F.3d at 1048–
49. Here, because the record evidence alone does not compel the conclusion that
Ashtari would be tortured in Iran, the agency did not err in denying Ashtari relief
under CAT. Id.
3. Ashtari further contends that the IJ abused his discretion by denying
Ashtari’s motion to continue the proceedings. We review an IJ’s denial of a
continuance for abuse of discretion. Arrey v. Barr, 916 F.3d 1149, 1158 (9th Cir.
2019). In Matter of Hashmi, the BIA articulated five non-exclusive factors that an
IJ should consider in determining whether to continue proceedings to allow a
noncitizen to apply for adjustment of status. See 24 I. & N. Dec. 785, 790 (BIA
2009); see also Malilia v. Holder, 632 F.3d 598, 606 (9th Cir. 2011). Because the
IJ properly stated and applied these factors, the IJ did not abuse his discretion in
denying a continuance. See Arrey, 916 F.3d at 1158.
4. Finally, to the extent Ashtari’s brief raises an argument that her removal
proceedings violated due process, she fails to identify a specific error and similarly
fails to demonstrate how any such error prevented her from fully presenting her case.
See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000) (explaining that the court
5 “will reverse the BIA’s decision on due process grounds if the proceeding was ‘so
fundamentally unfair that the alien was prevented from reasonably presenting his
case’”) (citation omitted).
PETITION DENIED.