Surinder Pal v. Eric H. Holder Jr.

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 16, 2013
• Docket: 08-74060
• Status: Unpublished

Opinion

FILED JUL 16 2013 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SURINDER PAL, No. 08-74060

Petitioner, Agency No. A070-542-986

v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General,

Respondent.

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

Argued and Submitted June 12, 2013 San Francisco, California

Before: SCHROEDER, RIPPLE,** and CALLAHAN, Circuit Judges.

Surinder Pal, a native and citizen of India, petitions for review of the order

of the Board of Immigration Appeals (“BIA” or the “Board”). That decision

affirmed an Immigration Judge’s (“IJ”) denial of his applications for asylum and

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S. Court of Appeals for the Seventh Circuit, sitting by designation. for protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252.

Mr. Pal challenges the IJ’s adverse credibility determination. The pre-REAL

ID Act standards govern this case. Joseph v. Holder, 600 F.3d 1235, 1246 n.8 (9th

Cir. 2010). We review the BIA’s decision affirming an adverse credibility

determination for substantial evidence. Yaogang Ren v. Holder, 648 F.3d 1079,

1083 (9th Cir. 2011). We also review for substantial evidence the determination

that Mr. Pal has not established eligibility for asylum or CAT protection. See

Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir. 2009) (addressing asylum);

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

Mr. Pal’s objections to the adverse credibility determination are not

persuasive. He contends that the IJ was required to credit his explanation that the

inconsistencies between his first declaration and his amended declaration and

testimony are attributable to an unscrupulous preparer. The record demonstrates

that the IJ considered Mr. Pal’s explanation, which is all that we require. Rivera v.

Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). Even if the IJ had accepted Mr.

Pal’s explanation, it does not account for the inconsistencies that the IJ and the

BIA identified between his amended declaration, prepared by his attorney, and his

in-court testimony. These inconsistencies, such as the circumstances of his first

2 arrest, the amount of the bribe paid to secure his release after his second arrest and

when he suffered physical injury from torture, go to the heart of Mr. Pal’s claim for

relief. Therefore, the adverse credibility determination is supported by substantial

evidence.

Mr. Pal next alleges that the IJ violated his right to due process by failing to

give him additional opportunities to explain these inconsistencies. However, he

has not challenged the IJ’s requirement that he produce medical evidence to justify

additional continuances. Nor has he even alleged that he could have produced such

evidence. In any event, he has not established prejudice, as he must to prevail on a

due process claim. Gonzaga-Ortega v. Holder, 694 F.3d 1069, 1076 (9th Cir.

2012). Indeed, he is silent concerning what explanation for the inconsistencies he

would offer were he granted another continuance.

Mr. Pal’s other claimed due process violation, the denial of a complete,

simultaneous translation, also fails. He has not demonstrated his entitlement to

such a translation or shown that the denial of such a translation prejudiced him.

Mr. Pal does not allege that, if he were provided with a translation of the IJ’s

discussion with his attorney, he would have produced the required medical

evidence of his inability to testify.

3 In support of his asylum claim, Mr. Pal offered his own testimony, which

was found incredible, as well as expert opinions. Because the experts’ opinions

were based on Mr. Pal’s now-recanted statements, the IJ declined to credit them.

The IJ’s ruling did not deprive Mr. Pal of the opportunity to present evidence on

his own behalf. The expert opinions support only his first declaration, which he

has since stated is not true and upon which he does not want his claim decided. He

cannot have it both ways. Without any credible evidence to support the version of

events he now puts forward, Mr. Pal’s asylum claim fails.

Finally, Mr. Pal’s claim that the BIA engaged in improper factfinding with

regard to country conditions is not well-taken. The BIA “‘relied on the predicate

facts found by the Immigration Judge.’” Ridore v. Holder, 696 F.3d 907, 922 (9th

Cir. 2012) (quoting Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A. 2008)).

The Board specifically referred to Exhibit 4, which the IJ discussed and which

contains the very language used by the BIA.

Because Mr. Pal’s CAT claim is based on the same statements as his asylum

claim, and country conditions evidence does not compel the conclusion that it is

more likely than not that he would be tortured if returned to India, his CAT claim

also fails.

Petition DENIED.