Omkar Shrestha v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 17-70096
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION FEB 22 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OMKAR SHRESTHA, No. 17-70096

Petitioner, Agency No. A206-361-030

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted February 15, 2019** San Francisco, California

Before: McKEOWN and W. FLETCHER, Circuit Judges, and EZRA,*** District Judge.

Omkar Shrestha, a native and citizen of Nepal, petitions for review of the

Board of Immigration Appeals’ (“BIA”) denial of his application for asylum,

* 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. withholding of removal, and relief under the Convention Against Torture (“CAT”).

Shrestha claimed he was eligible for relief because he had been physically attacked

by Maoists due to his membership in the Nepali Congress Party.

“Where, as here, the BIA agrees with and incorporates specific findings of

the [Immigration Judge (“IJ”)] while adding its own reasoning, we review both

decisions.” Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We have

jurisdiction under 8 U.S.C. § 1252 and we affirm.

Asylum and Withholding of Removal

An applicant for asylum and withholding of removal bears the burden of

establishing eligibility. 8 U.S.C. §§ 1158(b)(1)(B)(I), 1229a(c)(4)(A).

“The testimony of the applicant may be sufficient to sustain the applicant’s

burden without corroboration, but only if the applicant satisfies the trier of fact that

the applicant’s testimony is credible . . . .” 8 U.S.C. § 1158(b)(1)(B)(ii). The

REAL ID Act, which governs claims filed after May 11, 2005, provides the

standard for determining an applicant’s credibility, including a list of relevant

factors. 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha v. Holder, 590 F.3d 1034, 1044

(9th Cir. 2010). “For each factor forming the basis of an adverse credibility

determination, the IJ should refer to specific instances in the record that support a

conclusion that the factor undermines credibility.” Shrestha, 590 F.3d at 1044.

2 The BIA here upheld the IJ’s adverse credibility determination. An adverse

credibility determination is reviewed for substantial evidence. See Gui v. INS, 280

F.3d 1217, 1225 (9th Cir. 2002). “Under the substantial evidence standard, the

court upholds the BIA’s determination unless the evidence in the record compels a

contrary conclusion.” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)).

The evidence in the record does not compel a positive credibility

determination. The IJ permissibly relied on inconsistencies between Shrestha’s

credible fear interview—which was conducted under oath through an interpreter

and the admission of which Shrestha did not challenge—and his hearing testimony,

as well as the omission of the alleged attack on Shrestha from his father’s

supporting letter. As required, the IJ gave Shrestha an opportunity to explain the

inconsistencies. See Shrestha, 590 F.3d at 1044 (holding that an immigration

judge “should consider . . . the petitioner’s explanation for a perceived

inconsistency”). Shrestha’s explanations, while plausible, were not so obviously

correct that the IJ was compelled to credit them. See Rizk v. Holder, 629 F.3d

1083, 1088 (9th Cir. 2011) (“If the IJ reasonably rejects the alien’s explanation, . . .

the IJ may properly rely on the inconsistency as support for an adverse credibility

determination.” (internal citations omitted)).

3 The IJ also based his adverse credibility determination on Shrestha’s

demeanor, namely on a “pattern of evasiveness.” Though demeanor findings are

accorded “special deference” by reviewing courts, aspects of demeanor

“concerning the nature of petitioner’s testimony” that are “ascertainable from the

record” may be reviewed by courts for substantial evidence. Arulampalam v.

Ashcroft, 353 F.3d 679, 685–86 (9th Cir. 2003). “Absent specific examples of

evasiveness or inconsistency, a general declaration of evasiveness or inconsistency

is insufficient to support adverse credibility.” Lei Li v. Holder, 629 F.3d 1154,

1158–59 (9th Cir. 2011). Here, though, the IJ referred to a specific example of

evasiveness, and we are not compelled by the record to conclude that the IJ’s

evasiveness finding was erroneous. Under the “totality of the circumstances,”

there is substantial evidence supporting the adverse credibility determination

upheld by the BIA. See 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha, 590 F.3d at 1044.

We next consider whether, absent credible testimony, Shrestha can establish

eligibility for asylum or withholding of removal based on documentary evidence

alone. “An applicant alleging past persecution has the burden of establishing that

(1) his treatment rises to the level of persecution; (2) the persecution was on

account of one or more protected grounds; and (3) the persecution was committed

4 by the government, or by forces that the government was unable or unwilling to

control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).

Here, even assuming Shrestha’s documentary evidence shows treatment

rising to the level of persecution on the basis of his political opinion, there is

substantial evidence supporting the IJ’s finding that Shrestha failed to establish that

his persecutors, Maoists, are “forces that the government was unable or unwilling

to control.” See id. The country conditions documents show active police

responses to Maoist violence, including numerous arrests following violent

demonstrations. Though Shrestha asserts that police did not act in his case because

of “pressure,” the IJ found the letter from local police indicated a serious, ongoing

investigation and we are not compelled to conclude the contrary. Substantial

evidence supports the BIA’s denial of asylum and withholding of removal.

Convention Against Torture

An applicant is eligible for CAT relief if he can show it is “more likely than

not” he would be tortured in the country of removal. 8 C.F.R. § 1208.16(c)(2).

Torture is defined as “severe pain or suffering, . . . inflicted by or at the instigation

of or with the consent or acquiescence of a public official or other person acting in

an official capacity.” 8 C.F.R. § 1208.18(a)(1). Shrestha has not shown it is “more

5 likely than not” he would be tortured with the “consent or acquiescence” of Nepali

public officials. Substantial evidence supports the BIA’s denial of CAT relief.

PETITION DENIED.