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NOT FOR PUBLICATION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
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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.
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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.
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