Fnu Haq v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 4, 2020
• Docket: 16-73067
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 4 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FNU NAJIBUL HAQ, AKA Najibul Haq No. 16-73067 Siddiqi, Agency No. A206-032-960 Petitioner,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted April 14, 2020** Pasadena, California

Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit Judges.

* 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). Petitioner Najibul Haq Siddiqi,1 a native and citizen of Afghanistan,

petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his

appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum,2

withholding of removal,3 and Convention Against Torture (“CAT”)4 relief. We

deny the petition.

The BIA’s determination that an alien is “not eligible for asylum must be

upheld if ‘supported by reasonable, substantial, and probative evidence on the

record.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L.

Ed. 2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4) (1992)). “It can be reversed

only if the evidence presented . . . was such that a reasonable factfinder would have

to conclude that the requisite fear of persecution existed.” Id.; see also Lianhua

Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). The same standard applies to

1 Petitioner’s visa was issued, and his notice to appear was served, under the name FNU (First Name Unknown) Haq. However, he testified that his last name is Siddiqi and filed his asylum application under that name. We therefore refer to him as such. 2 8 U.S.C. § 1158(a)(1). 3 8 U.S.C. § 1231(b)(3)(A). 4 United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.

2 adverse credibility determinations. See Shrestha v. Holder, 590 F.3d 1034, 1039

(9th Cir. 2010).

We have reviewed the record and are satisfied that the BIA’s determination

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

was based in part on Siddiqi’s demeanor during cross-examination, and the IJ

identified particular instances of evasiveness supporting the adverse credibility

determination. See id. at 1041–42. As to the inconsistencies in Siddiqi’s

testimony regarding the Taliban’s persecution of him and his furtive crossing into

Canada, Siddiqi has waived any challenges to those issues as proper grounds for

the adverse credibility determination by not arguing them in his opening brief. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).

Moreover, on this record, Siddiqi has failed to establish a clear probability of

persecution, as required for his withholding of removal claim. See Garcia v.

Holder, 749 F.3d 785, 791 (9th Cir. 2014); see also Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003). Additionally, the evidence in the record does not

compel a determination that it is more likely than not Siddiqi would be tortured in

Afghanistan. Thus, he is not entitled to CAT relief. Lianhua Jiang, 754 F.3d at

740–41; see also Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015); Farah, 348

F.3d at 1156–57.

3 Siddiqi’s due process claim based on the BIA’s denial of his request for a

third extension of time to file his respondent’s brief also fails. Even assuming that

the extension should have been given, he has failed to show prejudice from the

denial. See Zetino v. Holder, 622 F.3d 1007, 1013–14 (9th Cir. 2010). After

denying the request, the BIA accepted and considered Siddiqi’s respondent’s brief

even though it was filed fifty-six days late.

Finally, we deny Siddiqi’s motion to remand; it should have been submitted

to the BIA and is untimely. Singh v. Holder, 658 F.3d 879, 883–84, 884 nn. 4–5

(9th Cir. 2011).

Petition DENIED.