Amartugs Namkhai v. Loretta E. Lynch

FILED
NOT FOR PUBLICATION
MAY 26 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

AMARTUGS NAMKHAI, No. 13-72677

Petitioner, Agency No. A099-857-331

v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

Respondent.

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

Argued and Submitted April 11, 2016
San Francisco, California

Before: D.W. NELSON, NOONAN, and O’SCANNLAIN, Circuit Judges.

Amartugs Namkhai is a native and citizen of Mongolia. She arrived in the

United States in 2005 on a six-month visitor visa and never left. In 2006, the

Department of Homeland Security (“DHS”) charged her with removability because

she had remained in the United States for longer than the visa permitted. Namkhai

conceded this charge. She subsequently applied for withholding of removal,

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
asylum, and protection under the Convention Against Torture (“CAT”) alleging

that she had suffered violence on account of (1) her work as a police officer

fighting corruption endemic to the Mongolian People’s Revolutionary Party

(“MPRP”); (2) her membership in the Democratic Party; and (3) her membership

in an unspecified social group. The IJ denied Namkhai’s application determining

that she was not credible and that her documentary evidence did not independently

entitle her to relief. The Board of Immigration Appeals (“BIA”) upheld the IJ’s

decision and dismissed Namkhai’s appeal. Namkhai petitions this court for review

of the BIA’s decision. We have jurisdiction under 8 U.S.C. § 1252, and we deny

Namkhai’s petition.

1. The BIA upheld the IJ’s adverse credibility determination on the

grounds that Namkhai gave inconsistent and implausible testimony about three

factors significant to her asylum application. Shrestha v. Holder, 590 F.3d 1034,

1046-47 (9th Cir. 2010). We agree that two of these factors substantially support

the BIA’s determination. Id. at 1039. First, Namkhai gave discrepant testimony

regarding whether the MPRP continued to make threatening phone calls to her

after she quit her job as a police officer. Namkhai listed these phone calls as facts

in support of her asylum application, and thus her equivocal testimony about when

they ended is significant. See id. at 1046-47 (stating that inconsistent responses

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regarding the “underlying events that [give] rise to [a petitioner’s] fear [are] an

important factor in making an adverse credibility determination”). Second,

Namkhai testified inconsistently as to whether she kept documentary evidence of

MPRP’s misappropriation of public funds. She first testified that she possessed

such evidence, then that she did not, then that she forgot. The BIA upheld the IJ’s

determination that this was not plausible, and we agree. See Jibril v. Gonzales, 423

F.3d 1129, 1135 (9th Cir. 2005) (stating that the “IJ must be allowed to exercise

common sense in rejecting a petitioner’s testimony even if the IJ cannot point to

specific, contrary evidence in the record to refute it”).

2. The BIA upheld the IJ’s determination that Namkhai’s documentary

evidence did not independently entitle her to asylum because the evidence did not

establish that a protected ground was one of the central reasons for the harm she

suffered. Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir. 2008).

Namkhai’s documentary evidence, including reports of each of the incidents of

harm she suffered, does not demonstrate that her police work investigating

corruption or her political opinions were central reasons for the harm she endured

or would likely endure. Therefore, the BIA’s decision is supported by substantial

evidence. Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014).

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3. Because the BIA’s determination that Namkhai is not entitled to

asylum is supported by substantial evidence, its determination that she is not

entitled to withholding of removal is also necessarily supported by substantial

evidence. Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).

4. This court does not need to remand this case to the BIA because of its

errant statement that it would assume Namkhai to be credible for purposes of

analyzing her asylum claim, but then failing to consider her testimony. When read

in the context of (1) the BIA’s determination that Namkhai was not credible, and

(2) the BIA’s analysis, it is evident that the BIA only considered Namkhai’s

documentary evidence and only intended to consider this evidence. Therefore, the

court need not remand this case to the BIA. See Eneh v. Holder, 601 F.3d 943,

947-48 (9th Cir. 2010) (stating that when this court needs clarification in order to

adequately review a BIA opinion, it is necessary to remand the case).

5. The BIA did not abuse its discretion in failing to remand Namkhai’s

case to the IJ so that it could consider whether her membership in a social group

entitled her to asylum. Konstantinova v. I.N.S., 195 F.3d 528, 529 (9th Cir. 1999).

Namkhai amended her asylum application in 2012, stating at a hearing before the

IJ that there had been a “change in the law . . . regarding whistleblowers,” and that

she wished to amend her application to reflect “a new ground for asylum as well,

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which is a particular social group.” The BIA determined that Namkhai’s social

group claim was merely an additional legal claim based on the same facts that she

had already alleged, and that the IJ had properly considered and rejected this claim.

Because the IJ considered Namkhai’s police work investigating corruption among

government officials—including her whistleblowing activity—and determined that

Namkhai’s documentary evidence did not demonstrate that the harm she suffered

was caused by this work, the BIA did not abuse its discretion in deciding not to

remand Namkhai’s case to the IJ.

6. The BIA upheld the IJ’s determination that Namkhai was not entitled

to relief under CAT on the grounds that her documentary evidence did not

demonstrate that the harm she suffered was for a proscribed purpose. Ridore v.

Holder, 696 F.3d 907, 912 (9th Cir. 2012). Because Namkhai’s documentary

evidence does not show that (1) she would likely be harmed because of her anti-

corruption work or political opinion, or (2) that police officers who investigate

corruption generally are likely to be harmed for their work, the BIA’s decision is

supported by substantial evidence. Ling Huang, 744 F.3d at 1152.

Namkhai additionally argues that the BIA should have remanded her CAT

claim to the IJ so that it could have considered her testimony in its analysis.

Because the IJ determined that Namkhai was not credible, the IJ should not have

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considered her testimony, Shrestha, 590 F.3d at 1048-49, and the BIA therefore

did not abuse its discretion in failing to remand her case. Konstantinova, 195 F.3d

at 529.

PETITION FOR REVIEW DENIED.