FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
VARUN GOEL, Petitioner, No. 05-70298 v. Agency No. ALBERTO R. GONZALES, Attorney A78-638-722 General, Respondent.
VARUN GOEL, Petitioner, No. 05-74006 v. Agency No. A78-638-722 ALBERTO R. GONZALES, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 20, 2007—San Francisco, California
Filed June 14, 2007
Before: Mary M. Schroeder, Chief Circuit Judge, Stephen S. Trott, Circuit Judge, and Gary A. Feess,* District Judge.
*The Honorable Gary A. Feess, United States District Judge for the Central District of California, sitting by designation.
7199 7200 GOEL v. GONZALES Per Curiam Opinion GOEL v. GONZALES 7201
COUNSEL
Martin Resendez Guajardo and Teresa Salazar, Law Office of Martin Resendez Guajardo, San Francisco, California, for the petitioner.
Darcy Katzin and Lindsay L. Chichester, United States Department of Justice, Washington, D.C., for the respondent. 7202 GOEL v. GONZALES OPINION
PER CURIAM:
Petitioner Varun Goel, a native and citizen of India, peti- tions for review of his final order of removal. He challenges the adverse credibility finding in the Immigration Judge’s decision that was summarily affirmed by the Board of Immi- gration Appeals. He also challenges the BIA’s later denial of a motion to reopen that was supported primarily by polygraph examination results.
The case presents an issue of first impression regarding the use of polygraph results in motions to reopen removal deci- sions. We agree with the BIA that polygraph evidence pro- vides no adequate basis for reopening because it is not evidence that was previously unavailable within the meaning of the applicable regulation. 8 C.F.R. § 1003.2(c). Moreover, in this case, the original negative credibility finding was sup- ported by substantial evidence. We therefore deny the peti- tion.
BACKGROUND
Goel ascribes to the Nirankari faith, a minority religious group in India. He claims to have been persecuted in India, on account of his religious beliefs, by Sikh militants as well as by police officials, all of whom are allegedly hostile to those identifying as Nirankari. After entering the United States on a nonimmigrant visa and overstaying its terms, Goel was placed in removal proceedings. He conceded removability, and applied for asylum, withholding of removal, and relief under the Convention Against Torture.
The IJ denied all applications for relief, primarily on the basis of a negative credibility finding, concluding that Goel’s testimony materially contradicted the documentary evidence in several ways. For example, Goel testified that on one occa- GOEL v. GONZALES 7203 sion, Sikh militants fired upon him and his family with heavy rounds of ammunition in a drive-by shooting at their home. A press report, however, submitted by Goel in support of his application, was not consistent with Goel’s testimonial ver- sion of the event. The report described Goel and his father as having been physically beaten outside their home. It described the assailants as having fired into the air in a show of intimi- dation as they ran off to their vehicle.
Goel also testified that he was not injured in the attack, but this too was inconsistent with the press report’s version of the incident, which described Goel and his father as having sus- tained injuries. When asked to explain these inconsistencies, Goel responded only that the report was wrong.
Goel further testified that he and his father were arrested and tortured for several days by local police when they tried to report the attack on their home. According to Goel’s testi- mony, the police beat his knees with sticks, forcibly stripped him of his clothes, and ripped off patches of skin with a knife, rendering him unconscious from the pain. This too contra- dicted the documentary evidence. A letter written by Goel’s father and also submitted by Goel, described only a brief period of humiliation and harassment, and did not mention any torture, physical abuse, or lengthy confinement.
The IJ noted all of these inconsistencies in making a nega- tive credibility finding, observed Goel had a “tendency to exaggerate,” and denied relief. The BIA summarily affirmed without opinion, and Goel timely petitioned this court for review.
While the petition was pending, Goel filed a motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(1). The motion was supported primarily by polygraph examination results going to the veracity of Goel’s testimony before the IJ regarding the torture in India. He claimed the polygraph report was evi- dence that was “not available” within the meaning of the 7204 GOEL v. GONZALES applicable regulation’s provision that motions to reopen must be supported by evidence “not available” earlier. 8 C.F.R. § 1003.2(c)(1).
The only relevant questions and answers in the proffered polygraph report were the following:
(1) Have you lied about being tortured during your two political arrests by the Amritsar Police?
Answer: No.
(2) Have you lied about being tortured during your two arrests by the Amritsar Police, which is now under investigation?
(3) Is there any part of your claim of torture while under two political arrests which is a lie?
The examiner concluded he believed that Goel’s answers were truthful.
Goel also submitted a medical examination report. It con- cluded that the scars on his body “may be consistent” with the torture Goel alleges he experienced.
The BIA denied reopening concluding that Goel could not show that either the polygraph evidence or the medical report was previously unavailable, and could not have been discov- ered or presented at the IJ hearing. Goel timely petitioned this court to review that denial as well as the removal order. Both petitions have been consolidated and are now before the court. GOEL v. GONZALES 7205 DISCUSSION
A. Motion To Reopen
The novel issue in this case is whether polygraph examina- tion results qualify as evidence that was “not available” within 8 C.F.R. § 1003.2(c)(1), and thus may support a suc- cessful motion to reopen. We hold that polygraph evidence may not.
[1] Under 8 C.F.R. § 1003.2(c)(1), reopening is proper only where the moving party can satisfy specific criteria. It pro- vides:
A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing[.]
8 C.F.R. § 1003.2(c)(1).
The key question, therefore, is whether the allegedly new information was unavailable at the time of the movant’s hear- ing. If it was available or capable of being discovered at that time, it cannot provide a basis for reopening.
In Guzman v. INS, 318 F.3d 911 (9th Cir.
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FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
VARUN GOEL, Petitioner, No. 05-70298 v. Agency No. ALBERTO R. GONZALES, Attorney A78-638-722 General, Respondent.
VARUN GOEL, Petitioner, No. 05-74006 v. Agency No. A78-638-722 ALBERTO R. GONZALES, Attorney General, OPINION Respondent. On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted April 20, 2007—San Francisco, California
Filed June 14, 2007
Before: Mary M. Schroeder, Chief Circuit Judge, Stephen S. Trott, Circuit Judge, and Gary A. Feess,* District Judge.
*The Honorable Gary A. Feess, United States District Judge for the Central District of California, sitting by designation.
7199 7200 GOEL v. GONZALES Per Curiam Opinion GOEL v. GONZALES 7201
COUNSEL
Martin Resendez Guajardo and Teresa Salazar, Law Office of Martin Resendez Guajardo, San Francisco, California, for the petitioner.
Darcy Katzin and Lindsay L. Chichester, United States Department of Justice, Washington, D.C., for the respondent. 7202 GOEL v. GONZALES OPINION
PER CURIAM:
Petitioner Varun Goel, a native and citizen of India, peti- tions for review of his final order of removal. He challenges the adverse credibility finding in the Immigration Judge’s decision that was summarily affirmed by the Board of Immi- gration Appeals. He also challenges the BIA’s later denial of a motion to reopen that was supported primarily by polygraph examination results.
The case presents an issue of first impression regarding the use of polygraph results in motions to reopen removal deci- sions. We agree with the BIA that polygraph evidence pro- vides no adequate basis for reopening because it is not evidence that was previously unavailable within the meaning of the applicable regulation. 8 C.F.R. § 1003.2(c). Moreover, in this case, the original negative credibility finding was sup- ported by substantial evidence. We therefore deny the peti- tion.
BACKGROUND
Goel ascribes to the Nirankari faith, a minority religious group in India. He claims to have been persecuted in India, on account of his religious beliefs, by Sikh militants as well as by police officials, all of whom are allegedly hostile to those identifying as Nirankari. After entering the United States on a nonimmigrant visa and overstaying its terms, Goel was placed in removal proceedings. He conceded removability, and applied for asylum, withholding of removal, and relief under the Convention Against Torture.
The IJ denied all applications for relief, primarily on the basis of a negative credibility finding, concluding that Goel’s testimony materially contradicted the documentary evidence in several ways. For example, Goel testified that on one occa- GOEL v. GONZALES 7203 sion, Sikh militants fired upon him and his family with heavy rounds of ammunition in a drive-by shooting at their home. A press report, however, submitted by Goel in support of his application, was not consistent with Goel’s testimonial ver- sion of the event. The report described Goel and his father as having been physically beaten outside their home. It described the assailants as having fired into the air in a show of intimi- dation as they ran off to their vehicle.
Goel also testified that he was not injured in the attack, but this too was inconsistent with the press report’s version of the incident, which described Goel and his father as having sus- tained injuries. When asked to explain these inconsistencies, Goel responded only that the report was wrong.
Goel further testified that he and his father were arrested and tortured for several days by local police when they tried to report the attack on their home. According to Goel’s testi- mony, the police beat his knees with sticks, forcibly stripped him of his clothes, and ripped off patches of skin with a knife, rendering him unconscious from the pain. This too contra- dicted the documentary evidence. A letter written by Goel’s father and also submitted by Goel, described only a brief period of humiliation and harassment, and did not mention any torture, physical abuse, or lengthy confinement.
The IJ noted all of these inconsistencies in making a nega- tive credibility finding, observed Goel had a “tendency to exaggerate,” and denied relief. The BIA summarily affirmed without opinion, and Goel timely petitioned this court for review.
While the petition was pending, Goel filed a motion to reopen pursuant to 8 C.F.R. § 1003.2(c)(1). The motion was supported primarily by polygraph examination results going to the veracity of Goel’s testimony before the IJ regarding the torture in India. He claimed the polygraph report was evi- dence that was “not available” within the meaning of the 7204 GOEL v. GONZALES applicable regulation’s provision that motions to reopen must be supported by evidence “not available” earlier. 8 C.F.R. § 1003.2(c)(1).
The only relevant questions and answers in the proffered polygraph report were the following:
(1) Have you lied about being tortured during your two political arrests by the Amritsar Police?
Answer: No.
(2) Have you lied about being tortured during your two arrests by the Amritsar Police, which is now under investigation?
(3) Is there any part of your claim of torture while under two political arrests which is a lie?
The examiner concluded he believed that Goel’s answers were truthful.
Goel also submitted a medical examination report. It con- cluded that the scars on his body “may be consistent” with the torture Goel alleges he experienced.
The BIA denied reopening concluding that Goel could not show that either the polygraph evidence or the medical report was previously unavailable, and could not have been discov- ered or presented at the IJ hearing. Goel timely petitioned this court to review that denial as well as the removal order. Both petitions have been consolidated and are now before the court. GOEL v. GONZALES 7205 DISCUSSION
A. Motion To Reopen
The novel issue in this case is whether polygraph examina- tion results qualify as evidence that was “not available” within 8 C.F.R. § 1003.2(c)(1), and thus may support a suc- cessful motion to reopen. We hold that polygraph evidence may not.
[1] Under 8 C.F.R. § 1003.2(c)(1), reopening is proper only where the moving party can satisfy specific criteria. It pro- vides:
A motion to reopen proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing[.]
8 C.F.R. § 1003.2(c)(1).
The key question, therefore, is whether the allegedly new information was unavailable at the time of the movant’s hear- ing. If it was available or capable of being discovered at that time, it cannot provide a basis for reopening.
In Guzman v. INS, 318 F.3d 911 (9th Cir. 2003) (per curium), for example, we held that the noncitizen’s discovery that he mistakenly reported the wrong date of entry at his deportation hearing could not provide the basis for reopening because the allegedly “new information” about his entry date “was available and capable of discovery prior to his deporta- tion hearing.” Guzman, 318 F.3d at 913. By contrast, in Bha- sin v. Gonzales, 423 F.3d 977 (9th Cir. 2005), we held that the evidence offered in support of reopening was previously unavailable because it concerned events that did not occur until after the IJ hearing. Bhasin, 423 F.3d at 987. 7206 GOEL v. GONZALES [2] Here, the polygraph evidence that Goel offers concerns events that allegedly occurred in India well before his IJ hear- ing. Goel was not in custody while awaiting his removal hear- ing, and was thus free to gather the evidence in support of his applications for relief. The polygraph report is evidence that could have been obtained at that time and that could have been presented at his hearing to help resolve inconsistencies in his own evidence. See Guzman, 318 F.3d at 913. Indeed, Goel concedes that there was no reason why he could not have secured a polygraph report between the time he was released and the time he first appeared before the IJ.
[3] The BIA also viewed the polygraph evidence as unreli- able. Goel argues that the polygraph report constitutes stronger evidence than his documentary evidence. According to Goel, the report establishes the truth of his testimony that in turn was based on first hand knowledge. As the Supreme Court has explained, however, “there is simply no consensus that polygraph evidence is reliable. To this day, the scientific community remains extremely polarized about the reliability of polygraph techniques.” United States v. Scheffer, 523 U.S. 303, 309 (1998).
[4] Finally, even if reliable, the polygraph report could not establish prima facie eligibility for asylum. At most, the poly- graph test results establish that Goel’s fear of being perse- cuted is subjectively genuine. They do not establish or even relate to the objective reasonableness of the fear. See Ladha v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (“To establish a well-founded fear of persecution, petitioners must show their fear to be both objectively reasonable and subjectively genu- ine.”).
[5] We do not necessarily preclude the discretionary con- sideration of polygraph evidence by an IJ or the BIA at earlier stages of a removal proceeding. But we do hold that poly- graph evidence cannot serve as the basis for reopening under 8 C.F.R. § 1003.2(c). GOEL v. GONZALES 7207 [6] Also in support of his motion to reopen, Goel submitted a medical report which explained that his scars are consistent with the torture he claims to have experienced. Because this report also concerns events that occurred well before the IJ hearing, and there is also no reason why Goel could not have obtained and presented this evidence to the IJ, this report can- not qualify as evidence that was previously unavailable either.
B. The Credibility Determination
Goel challenges the IJ’s underlying adverse credibility finding, contending it relies on minor inconsistencies that do not go to the heart of his claim for relief. See Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). The inconsistencies were material because they bore on the key issue of whether he suffered past persecution. Goel’s testi- mony was at odds with his own documentary evidence as to the nature of the persecution.
[7] We have held inconsistencies between testimonial and documentary evidence to be a proper basis for an adverse credibility finding. Wang v. INS, 352 F.3d 1250, 1258-59 (9th Cir. 2003). Whether Goel was physically beaten or whether he was fired upon, and whether he incurred actual injuries or escaped unscathed were issues crucial to the IJ’s evaluation of whether Goel had experienced persecution, and whether he had any objectively reasonable fear of future persecution. The adverse credibility finding was founded upon inconsistencies that went to the heart of Goel’s claim.
CONCLUSION
[8] Goel provided no adequate basis for reopening and the IJ’s adverse credibility finding was supported by substantial evidence.
The petitions for review are DENIED.