Narayan v. Gonzales

220 F. App'x 691

Opinions

MEMORANDUM

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Maureen Lata Narayan petitions this court for review of a decision by the Board of Immigration Appeals affirming the Immigration Judge’s order of removal and denial of her application for asylum, withholding of removal, and relief under the Convention Against Torture. We deny her petition.

We review a BIA decision to determine if it is supported by substantial evidence, and reverse if the evidence compels a contrary conclusion.¹ Because the BIA adopted the IJ’s adverse credibility findings, the IJ’s findings are reviewed under the same standard.² All we require is that “an IJ ... point to a ‘specific and cogent’ reason supporting an adverse credibility finding” and that reason identified “ ‘be substantial and bear a legitimate nexus to the finding.’ ”^{3 4}

Substantial evidence supported the adverse credibility finding. That Ms. Narayan sent her daughters back to Fiji despite her claim of rape there undermined the credibility of her claim that she had in fact been raped. Ms. Narayan said she sent her daughters back because “they had fallen so sick.” But her descriptions of their “sickness” were vague and inconsistent. She first testified that “they had stomach upset [sic],” “would fever continuously,” “were not able to eat, and would vomit.” Later, she testified that “[t]hey had become so severely sick that they were unable to walk without support.” But, when counsel pressed the issue, she admitted that the children “could walk.” Ms. Narayan also admitted that, despite her children being so sick, she never attempted to bring them to a doctor, hospital, or free clinic. Her implausible and inconsistent testimony about why she sent her daughters back undermined its credibility.

The failure of Ms. Narayan’s to obtain corroboration from her sister-in-law was significant. Her sister-in-law, Ms. Narayan testified, escorted the daughters back to Fiji. The sister-in-law would have been able to testify as to their condition at the time. She was a U.S. resident, though she was abroad on vacation at the time of the hearing. “[W]here the IJ has reason to question the applicant’s credibility, and the applicant fails to produce non-duplicative, material, and easily available corroborating evidence and provides no credible explanation for such failure, an adverse credibility finding will withstand appellate review.”⁵

Substantial evidence supported the IJ’s finding that Ms. Narayan’s assertions about her daughters’ illness and their return to Fiji were not credible, so we lack authority to supplement it. These assertions went to the heart of her asylum claim. If Narayan was lying about the rape, then the basis for the asylum claim did not exist, and the lack of credibility of her testimony about her daughters bore on whether the rape testimony was true. The change in political circumstances would not necessarily induce a mother to send her daughters back to so horrific a social context. And the sister-in-law would have had personal knowledge of the daughter’s health on the long trip, and of what petitioner had told her about why she was sending her daughters back.

PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

1 . See, e.g., INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

2 . Kaur v. Ashcroft, 379 F.3d 876, 884 (9th Cir.2004).

3 . Id. (quoting Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003); Salaam v. INS, 229 F.3d 1234, 1238 (9th Cir.2000)).

4 . The REAL ID Act of 2005, Pub.L. No. 109-13, 119 Stat. 231 (2005), amended the law regarding both what an IJ can consider in making a credibility determination and when an IJ can require corroborative evidence. However, that provision of the REAL ID Act, sec. 101(a)(3), applies only to "applications for asylum, withholding, or other relief from removal made on or after [the date of enactment, May 11, 2005].” Because Ms. Narayan’s application was made in 1999, the relevant provisions of the REAL ID Act does not govern her case.

5 . Sidhu v. INS, 220 F.3d 1085, 1092 (9th Cir.2000).