Otgonny Batchuluun v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 24, 2018
• Docket: 16-70003
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION MAY 24 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

OTGONNYAM BATCHULUUN, No. 16-70003

Petitioner, Agency No. A089-671-487

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted May 15, 2018** San Francisco, California

Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,*** District Judge.

* 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 Deborah A. Batts, United States District Judge for the Southern District of New York, sitting by designation. Otgonnyam Batchuluun, native and citizen of Mongolia, petitions for review

of the denial by Board of Immigration Appeals (BIA) of his application for

asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition

for review.

The BIA affirmed the IJ’s adverse credibility determination on three

grounds. “[W]e must uphold the IJ’s adverse credibility determination so long as

even one basis is supported by substantial evidence.” Rizk v. Holder, 629 F.3d

1083, 1088 (9th Cir. 2011). Substantial evidence supports the BIA’s affirmance of

the IJ’s adverse credibility finding. Most notably, Batchuluun testified

inconsistently with regard to his journalism career. He was confronted with the

inconsistencies surrounding his career, including testimony regarding how many

articles he wrote, how many he wrote under an alias, and his importance to the

newspaper.1 The IJ and the BIA did not find his explanations as to his evolving

story to be persuasive, concluding that Batchuluun’s story lacked the ring of truth.

See Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005); Singh v. Holder,

1 Batchuluun raised the issue for the first time on appeal that the IJ’s reliance on the asylum officer’s assessment to refer rather than sworn interview notes or a transcript was error. Because he failed to exhaust this issue before the BIA, this panel lacks jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004). 2 638 F.3d 1264, 1270 (9th Cir. 2011). This finding alone supports the adverse

credibility determination. See Rizk, 629 F.3d at 1088.

The BIA’s other identified reasons for Batchuluun’s adverse credibility

finding—failure to mention his computer was stolen when he was attacked and

inability to explain why he didn’t know a reporter who was (1) listed as an attendee

at the same conference he was suppose to attend and (2) from his same eight-

person newspaper office—further support the BIA’s adverse credibility

determination based on a totality of the circumstances. See Shrestha v. Holder,

590 F.3d 1034, 1040 (9th Cir. 2010). Nothing in the record compels a contrary

conclusion. Lianhua Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014).

In the absence of credible testimony, Batchuluun’s asylum and withholding

of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.

2003). Because Batchuluun’s CAT claim is based on the same evidence the IJ

found not credible, and Batchuluun does not point to any other evidence in the

record to show it is more likely than not he would be tortured in Mongolia, his

CAT claim also fails. See id. at 1156-57.

PETITION FOR REVIEW DENIED.