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NOT FOR PUBLICATION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.
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