FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VINO KUMAR SAVAL; GITA KAMALA
NANIKRAM, No. 05-75622
Petitioners, Agency Nos.
v. A071-950-956
ERIC H. HOLDER Jr., Attorney A071-950-957
General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2010*
San Francisco, California
Filed September 23, 2010
Before: Cynthia Holcomb Hall, John T. Noonan and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan;
Dissent by Judge Noonan
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
16239
16242 SAVAL v. HOLDER
COUNSEL
Alison Dixon, San Francisco, California, for the petitioner.
Peter Keisler, Assistant Attorney General, and Michelle
Latour, Washington, D.C., and Joan E. Marshall, Dallas,
Texas, for the respondent.
OPINION
CALLAHAN, Circuit Judge:
Vino Kumar Saval (“Saval”) and his wife Gita Kamala
Nanikram (“Nanikram”) appeal the Board of Immigration
Appeals’ (“BIA”) decision denying asylum, withholding of
removal, and relief under Article III of the Convention
Against Torture (“CAT”). We have jurisdiction pursuant to 8
U.S.C. § 1252. We dismiss Saval’s petition as moot and we
deny in part and dismiss in part Nanikram’s petition.
I
Saval and Nanikram, citizens and natives of India, entered
the United States in July 1991 without inspection. In August
1991, they filed applications for asylum. Saval was the princi-
pal applicant and Nanikram filed a derivative application. The
Immigration and Naturalization Service1 charged them with
being deportable and they appeared before an Immigration
Judge (“IJ”) in December 1995.
1
On March 1, 2003, the functions of the Immigration and Naturalization
Service transferred from the Department of Justice to three agencies
within the newly formed Department of Homeland Security.
SAVAL v. HOLDER 16243
At the 1995 hearing, Saval testified that before coming to
the United States, he and his wife lived in New Delhi, India.
Saval stated that he had been active in a Hindu religious party
whose goals were to educate people about Hinduism and to
build a temple on a site of a former mosque. Saval alleged
that he and his colleagues were beaten and threatened by
Muslim extremists. He claimed that he received death threats
and that he and his wife fled to the United States after a col-
league was murdered.
Saval’s asylum application and his written declaration con-
tained inconsistent statements. His application claimed that he
feared harm from Muslim fundamentalists, but his declaration
indicated that he was Muslim and feared persecution from the
Hindus. At his 1995 hearing, Saval testified that he was born
a Hindu and was never a Muslim. He admitted that he had
read his declaration but did not know why it contained the
paragraph stating that he was Muslim. Saval also briefly men-
tioned that his wife was abducted on one occasion.
The government cross-examined Saval about whether he
had told the asylum officer that he and his wife were Muslim.
The government proffered the officer’s notice of intent to
deny Saval’s application because of inconsistencies, and
Saval’s attorney objected, arguing that the notice should not
be admitted unless the asylum officer was produced and sub-
ject to cross-examination. Saval’s attorney also asked for
more time to obtain additional documentation.
The IJ denied Saval and Nanikram relief because of incon-
sistencies in Saval’s story. The BIA affirmed on appeal. Saval
and Nanikram filed a petition for review with this court and
we remanded, holding that due to the IJ’s failure to make an
explicit credibility determination, we could not assess the
merits of Saval’s claims. Saval v. INS, 142 F.3d 445 (Table)
(9th Cir. 1998), 1998 WL 187479. The BIA then remanded to
the IJ with instructions to allow each party to present addi-
tional evidence.
16244 SAVAL v. HOLDER
A further hearing was held before the IJ in 2004. Saval
offered several articles discussing the religious tension and
violence throughout India between Hindus and Muslims. Nei-
ther party made reference to the asylum officer’s 1995 report
and neither called him as a witness. While Saval’s counsel
was questioning Saval concerning his inability to procure cor-
roborating documents from the Hindu religious party he had
belonged to, Saval stated for the first time that Nanikram was
Muslim. Saval asserted that this was the reason why he could
not get corroborating documents from the Hindu party and
was also the reason why they could not live safely in some
other place in India.
The IJ denied Saval and Nanikram relief, finding that Saval
was not credible. On appeal, the BIA affirmed. In September
2005, Saval and Nanikram filed the present petition for
review with this court.
In February 2010, we ordered the petition submitted on the
briefs as of March 12, 2010. On that day, petitioners filed a
“motion to stay mandate and place case in mediation,” reveal-
ing for the first time that Saval had died in February 2007.
The government eventually filed opposition to the motion.
We hereby deny the motion to stay the mandate and to place
this case in mediation.
II
Saval died in February 2007, and accordingly, his petition
for review is dismissed as moot. See Gonzalez v. Holder, 594
F.3d 1094, 1095 (9th Cir. 2010). However, because there may
be collateral consequences from the dismissal of Nanikram’s
derivative petition for review, we consider her petition on its
merits.
[1] In his dissent, Judge Noonan cites 8 U.S.C.
§ 1158(b)(3) which provides that a spouse “who is granted
asylum under this subsection may, if not otherwise eligible for
SAVAL v. HOLDER 16245
asylum under this section, be granted the same status as the
alien if accompanying, or following to join, such alien.”
Unfortunately, this provides little guidance for the situation
we confront: a claim by a spouse that asylum should have
been granted several years before her spouse, the primary
applicant, died.2
The parties have not asserted that Nanikram’s petition is
moot. As noted, Saval’s death was brought to the court’s
attention by Nanikram in a motion to stay the mandate and
place the case in mediation. The government opposed media-
tion asserting that if Nanikram sought to pursue a new claim
for asylum, she should file a motion to reopen with the BIA.
Neither party, however, suggested that the petition for review
should be dismissed as moot.
In our opinion in Gonzalez, we dismissed a petition for
review because the sole petitioner died while the appeal was
pending. In doing so we nonetheless commented that we had
examined the record and determined that there were no
remaining collateral consequences, and that “neither Petition-
er’s counsel nor the government has asserted any collateral
consequences exist.” Id. at 1095.
[2] Our review of the record suggests that there may be
collateral consequences if we dismiss Nanikram’s derivative
petition. We note that 8 C.F.R. § 208.14(f) states:
The denial of an asylum application filed by a princi-
pal applicant for asylum shall also result in the
denial of asylum status to any dependents of that
principal applicant who are included in that same
2
Judge Noonan’s citations to 8 C.F.R. § 1208.21(b) and Haddad v. Gon-
zalez, 437 F.3d 515, 516 (6th Cir. 2006), are also not dispositive. Although
they indicated that a person should be a spouse at the time an application
is approved, neither addresses the situation where an applicant contends
that she was entitled to relief years before the spouse died.
16246 SAVAL v. HOLDER
application. Such denial shall not preclude a grant of
asylum for an otherwise eligible dependent who has
filed a separate asylum application, nor shall such
denial result in an otherwise eligible dependent
becoming ineligible to apply for asylum due to the
provisions of section 208(a)(2)(C) of the Act.
Under this regulation, Nanikram may, as noted by our dissent-
ing colleague, file her own independent application for asy-
lum. The regulation, however, indicates that the denial of
asylum to the principal applicant does foreclose a derivative
applicant from asserting that basis for relief. In other words,
in this case, the dismissal of Nanikram’s derivative petition as
moot would render the BIA’s denial of relief on the grounds
raised in Saval’s petition final and binding on Nanikram. This
may seem inconsequential in light of our determination that
the BIA properly denied Nanikram relief. Our jurisdiction,
however, should be considered separately from our evaluation
of the underlying merits of the petition. If we were to hold
that we lack jurisdiction to consider Nanikram’s derivative
petition, we would create a precedent precluding us from con-
sidering a derivative petition which presented an overwhelm-
ingly persuasive claim that asylum should have been granted
years before the primary applicant’s death. These concerns,
coupled with counsel’s failure to assert that there are no col-
lateral consequences, lead us to address Nanikram’s petition
for review on its merits.
III
[3] We determine that petitioner waived her due process
argument based on the IJ’s refusal to allow Saval to cross-
examine his asylum officer. Despite the BIA’s instruction on
remand, Saval failed to call the asylum officer as a witness or
even raise the due process issue during the 2005 hearing
before the IJ. When a petitioner fails to raise an argument “be-
fore the IJ or the BIA, [he] has waived it and cannot raise it
before this Court.” Rodas-Mendoza v. INS, 246 F.3d 1237,
SAVAL v. HOLDER 16247
1240 (9th Cir. 2001); see also Farhoud v. INS, 122 F.3d 794,
797 (9th Cir. 1997).
[4] We review adverse credibility findings under a defer-
ential “substantial evidence standard.” Gui v. INS, 280 F.3d
1217, 1225 (9th Cir. 2002). Adverse credibility determina-
tions are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary. See INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Don v. Gonzales, 476
F.3d 738, 741 (9th Cir. 2007).
[5] Here, substantial evidence supports the IJ’s adverse
credibility finding. First, Saval’s application and attached dec-
laration for asylum are inconsistent — the former states he is
Hindu and the latter states he is Muslim. Moreover, when
asked about the discrepancy, Saval failed to give a consistent
explanation. He explained that when he signed the declara-
tion, “that paragraph,” which stated he was Muslim, was “not
there.” However, of the six paragraphs in the declaration,
three state he is Muslim. Moreover, Saval’s explanation that
he did not study the declaration “with a microscope” is incon-
sistent with his first response, which suggests he studied the
declaration well enough to know “that paragraph” was not
there.
[6] Second, Saval’s assertion in 2005 that his wife,
Nanikram, is Muslim raises questions that go to the heart of
the asylum application. See Alvarez-Santos v. INS, 332 F.3d
1245, 1254 (9th Cir. 2003) (noting that omitting a pivotal
event in his asylum application was a compelling reason to
discredit the petitioner’s credibility). This claim, which Saval
withheld for thirteen years, was advanced to suggest that he
fears persecution from Hindus instead of, or in addition to,
Muslims. Moreover, this new assertion also raises questions
concerning Saval’s brief assertion at his 1995 hearing that his
wife was abducted on one occasion, and his failure to mention
his wife’s abduction in his asylum application. Although
omissions of detail in asylum applications are insufficient to
16248 SAVAL v. HOLDER
uphold an adverse credibility finding, Lopez-Reyes v. INS, 79
F.3d 908, 911 (9th Cir. 1996), Saval’s claim of abduction and
subsequent assertion that Nanikram is Muslim are more than
mere omissions of details. The claim of abduction was made
to bolster his grounds for fearing persecution by Muslims in
a predominately Hindu country. However, the implication
was misleading in light of his later claim that Nanikram is
Muslim.
[7] In sum, Nanikram has not shown that the adverse credi-
bility determination was not supported by substantial evi-
dence.
IV
Nanikram’s claims for the withholding of deportation and
for relief under the Convention Against Torture are dismissed
as they may not be maintained derivatively. See Ali v. Ash-
croft, 394 F.3d 780, 782 n.1 (9th Cir. 2005).3
V
[8] We dismiss Saval’s petition for review because he has
died, but decline to dismiss Nanikram’s petition in light of the
possible collateral consequences of such action. See Gonzalez,
594 F.3d at 1095. We deny Nanikram’s petition to review the
BIA’s denial of asylum because she has failed to carry her
burden of showing that the adverse credibility determination
was not supported by substantial evidence. See Don, 476 F.3d
at 745. We dismiss Nanikram’s claims for withholding of
removal and under the CAT because those claims may not be
asserted derivatively. Ali, 394 F.3d at 782 n.1.
3
In Ali, 394 F.3d at 782 n.1, we noted that 8 U.S.C. § 1158(b)(3) allows
derivative asylum for spouses and children, but that 8 U.S.C. § 1231(b)(3)
does not provide for derivative withholding of removal. Such distinctions
tend to support our concern that dismissing a derivative applicant’s asylum
petition based on the primary applicant’s demise may have collateral con-
sequences.
SAVAL v. HOLDER 16249
Dismissed in part and denied in part.
NOONAN, Circuit Judge, dissenting:
Vino Kumar Saval died in February 2007, before any peti-
tion on his behalf was considered by this court. His case is
beyond our jurisdiction. We are not deciding it.
The petition for asylum by Saval’s wife, Gita Kamala
Nanikram, is what is known as a “derivative claim.” Her
claim is dependant on her husband’s receipt of asylum status
from the Attorney General. 8 U.S.C. § 1158(b)(3). Even if the
BIA had erred in denying Saval’s asylum claim, we could not
remand for the Attorney General to grant asylum to someone
who is no longer alive. As the BIA’s regulations make plain,
if the spousal relationship ends before the Attorney General
approves an asylum application, a derivative application must
be rejected. See 8 C.F.R. § 1208.21(b); see also, e.g., Haddad
v. Gonzales, 437 F.3d 515, 516 (6th Cir. 2006) (“The regula-
tions make a spouse’s receipt of this derivative benefit contin-
gent on the spousal relationship being in existence when the
principal alien’s asylum application is approved.”). Because
we have no way of granting Nanikram the relief she seeks, her
petition is moot. See, e.g., Church of Scientology of Cal. v.
United States, 506 U.S. 9, 12 (1992) (“[I]f an event occurs
while a case is pending on appeal that makes it impossible for
the court to grant ‘any effectual relief whatever’ to a prevail-
ing party, the appeal must be dismissed.” (quoting Mills v.
Green, 159 U.S. 651, 653 (1895))).
As night follows day, Nanikram’s petition must be dis-
missed for lack of jurisdiction.1
1
Whether Nanikram’s derivative claim is denied on the merits or dis-
missed for lack of jurisdiction, she is not precluded from filing her own
independent application for asylum. See 8 C.F.R. § 208.14(f).