Djavokhir Kamimar v. Robert Wilkinson

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 10, 2021
• Docket: 19-73248
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DJAVOKHIR KAMIMAR, AKA Djavoxir No. 19-73248 Karimov, Agency No. A215-911-391 Petitioner,

v. MEMORANDUM*

ROBERT M. WILKINSON, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 8, 2021** Pasadena, California

Before: TASHIMA, M. SMITH, and MURGUIA, Circuit Judges.

Djavoxir Karimov,1 a native and citizen of Uzbekistan, petitions for review of

the Board of Immigration Appeals’s (“BIA”) dismissal of his appeal from the

* 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). 1 We refer to Petitioner as “Karimov” throughout this disposition consistent with the parties’ briefing. Immigration Judge’s (“IJ”) decision denying Karimov’s applications for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).

Karimov contends that he was beaten on two occasions and will be persecuted if

returned to Uzbekistan because he uncovered a fraudulent scheme perpetrated by his

boss at a government-run company. The IJ found that Karimov was not credible,

and the BIA upheld that adverse credibility determination. We have jurisdiction

under 8 U.S.C. § 1252, and we deny the petition.

1. The IJ’s adverse credibility finding was supported by substantial evidence.

Kin v. Holder, 595 F.3d 1050, 1054 (9th Cir. 2010) (explaining that, in applying the

substantial evidence standard, “[w]e reverse the BIA’s decision only if the

petitioner’s evidence was ‘so compelling that no reasonable factfinder could find

that he was not credible’”) (quoting Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.

2003)). Specifically, the record supports the agency’s finding that Karimov was not

credible based on multiple material inconsistencies between Karimov’s merits

hearing testimony and his credible fear interview and declaration. For instance,

Karimov was inconsistent on whether the same individuals perpetrated both alleged

beatings, how he got to his sister’s house after the alleged October 2017 beating,

where he was treated for his injuries, and the circumstances surrounding his flight

from persecution. See 8 U.S.C. § 1158(b)(1)(B)(iii) (an IJ may assess credibility

based on “the consistency between the applicant’s or witness’s written and oral

2 statements,” “the internal consistency of each such statement, [and] the consistency

of such statements with other evidence of record”).

When confronted with these inconsistencies, Karimov either asserted they

were typographical errors or claimed that they were trivial and irrelevant to his

claim. Karimov’s arguments lack merit. “Under the REAL ID Act, even minor

inconsistencies that have a bearing on a petitioner’s veracity may constitute the basis

for an adverse credibility determination.” Ren v. Holder, 648 F.3d 1079, 1089 (9th

Cir. 2011) (citing Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010)). And

because Karimov was given an opportunity to explain the inconsistencies, the

adverse credibility determination is supported by substantial evidence. See Rizk v.

Holder, 629 F.3d 1083, 1088–89 (9th Cir. 2011); see also Shrestha, 590 F.3d at 1047

(“[Petitioner’s] inability to consistently describe the underlying events that gave rise

to his fear was an important factor that could be relied upon by the IJ in making an

adverse credibility determination.”).

Because the record supports the IJ’s adverse credibility determination, it

follows that the BIA’s conclusion that Karimov failed to satisfy his burden of proof

in establishing eligibility for asylum and withholding of removal is also supported.

See Aguilar Fermin v. Barr, 958 F.3d 887, 892–93 (9th Cir. 2020).

2. Substantial evidence also supports the BIA’s conclusion that Karimov is not

eligible for CAT protection. Although an “adverse credibility determination is not

3 necessarily a death knell to CAT protection,” Karimov needed to provide reports

that alone compel the conclusion that he is more likely than not to be tortured if

returned to Uzbekistan. Shrestha, 590 F.3d at 1048–49 (citing 8 C.F.R.

§ 1208.16(c)(2)). Karimov provides country conditions evidence indicating some

instances of torture by Uzbekistani authorities, primarily torture in pretrial facilities

and local police precincts, of those arrested or detained on religious or extremism

charges. None of this evidence establishes a particularized threat of torture or proves

it is “more likely than not” that Karimov himself will be tortured should he return to

Uzbekistan. See 8 C.F.R. § 1208.16(c)(2); Delgado-Ortiz v. Holder, 600 F.3d 1148,

1152 (9th Cir. 2010) (stating that “generalized evidence of violence and crime . . . is

insufficient to meet [the CAT] standard”).

PETITION DENIED.