Sarfraz Akhtar v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 10, 2020
• Docket: 19-70946
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 10 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SARFRAZ AKHTAR, No. 19-70946

Petitioner, Agency No. A206-908-920

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

Respondent.

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

Argued and Submitted October 30, 2020 Portland, Oregon

Before: GRABER, CLIFTON, and IKUTA, Circuit Judges.

Sarfraz Akhtar, a native and citizen of Pakistan, seeks review of the Board of

Immigration Appeals (BIA) decision affirming the decision of the Immigration

Judge (IJ) to deny Akhtar’s application for asylum, withholding of removal, and

relief under the Convention Against Torture (CAT). We have jurisdiction under 8

U.S.C. § 1252(a)(1), and we deny the petition for review.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1. The IJ’s adverse credibility finding was supported by substantial

evidence. The Record of Sworn Statement in Proceedings under Section 235(b)(1)

of the Act (Form I-867), prepared by an immigration officer in expedited removal

proceedings after Akhtar attempted to enter the United States, stated that Akhtar

answered “Yes” to the questions “Have you ever been in the Pakistan military?”

and “Have you ever had any type of weapons training or military training?”.

During his hearing before the IJ, however, Akhtar denied having served in the

military in Pakistan. Akhtar was given an opportunity to explain the discrepancy,

but stated only that he “never said that” or “it happened by error.” The Form I-867

has “indicia of reliability,” Singh v. Gonzales, 403 F.3d 1081, 1089 (9th Cir.

2005), including that it was made under oath and with the assistance of an

interpreter, that Akhtar was given an opportunity to read (or have read to him) the

information in the Form I-867, 8 C.F.R. § 235.3(b)(2)(i), and that he initialed and

signed each page. Cf. Singh, 403 F.3d at 1089 (noting an assessment to refer did

“not contain any record of the questions and answers” and was “only a short,

conclusory summary—essentially, an opinion”). Moreover, Akhtar did not

challenge the admission or reliability of the Form I-867 in immigration

proceedings. Therefore, the Form I-867 constitutes substantial record evidence.

See id. The IJ was not compelled to accept the explanation for the inconsistency

2 given by Akhtar. “[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).1 Because Akhtar did not argue that documentary

evidence alone was sufficient to establish eligibility for asylum, the BIA properly

denied Akhtar’s application for asylum after affirming the adverse credibility

determination. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010)

2. The IJ’s denial of withholding of removal on the ground that Akhtar did

not show it was more likely than not he would face future persecution in Pakistan

was also supported by substantial evidence.2 Substantial evidence supports the

determination that the Pakistani government is not unwilling or unable to protect

Akhtar from private persecutors. 8 U.S.C. § 1231(b)(3); see Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1062–68 (9th Cir. 2017) (en banc). The BIA correctly

1 The IJ’s adverse credibility determination was based on additional inconsistencies in the record, including the inconsistency between Akhtar’s testimony that he hid in his friend’s house for two weeks after July 5, 2013, and his friend’s affidavit that he sheltered Akhtar from June 2, 2013, to June 16, 2013. 2 Despite the adverse credibility determination made in the asylum analysis, both the IJ and the BIA evaluated Akhtar’s claim for withholding of removal as if Akhtar’s testimony was credible. We have previously disapproved of treating testimony as “both truthful and untruthful on the same issue in the same proceeding.” Kalubi v. Ashcroft, 364 F.3d 1134, 1138 (9th Cir. 2004). This error does not require remand, because independently sufficient reasons support denying the petition for review as it relates to withholding. 3 determined that the country conditions evidence from 2013 did not support

Akhtar’s claims but rather supported a finding that the Pakistani government had

made efforts to curb sectarian violence, including steps to protect individuals from

unsubstantiated blasphemy allegations. Moreover, Akhtar acknowledged that he

did not report the assaults or threats to the police, and failed to provide evidence

beyond police investigation into the July 2013 attack on Akhtar and the blasphemy

allegation.

Substantial evidence also supports the determination that Akhtar could

relocate safely and reasonably within Pakistan to avoid future persecution. 8

C.F.R. § 1208.16(b)(2)–(3); see Singh v. Whitaker, 914 F.3d 654, 659–61 (9th Cir.

2019). Because Akhtar did not argue to the BIA that a nationwide presumption

against relocation exists and the BIA did not address that presumption, that

argument is not exhausted and we lack jurisdiction to consider it. Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). To the extent that the issue is not

exhausted, no nationwide presumption against relocation exists, because the two

past incidents identified by Akhtar were not carried out by the government. Cf.

Singh, 914 F.3d at 661. The record evidence does not compel the conclusion that a

national network of Islamic extremists would target Akhtar outside of his

hometown. Moreover, the IJ and the BIA did not err in determining that relocation

4 would be reasonable due to Akhtar’s age, education, and demonstrated ability to

relocate.

3. The BIA also denied CAT relief and Akhtar’s motion to reopen

proceedings to submit additional country reports. Because Akhtar did not

challenge these rulings on appeal in his opening brief, they are waived. See Rizk,

629 F.3d at 1091 n.3.

PETITION DENIED.