FILED
NOT FOR PUBLICATION
JUN 15 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAMPHYLS BATILA-BATILA, No. 15-71823
Petitioner, Agency No. A205-273-088
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 11, 2018**
Seattle, Washington
Before: D.W. NELSON and WATFORD, Circuit Judges, and PREGERSON,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Dean D. Pregerson, United States District Judge for
the Central District of California, sitting by designation.
Pamphyls Batila-Batila (“Batila-Batila” or “Petitioner”), a native and citizen
of the Democratic Republic of Congo (“DRC”), appeals the Board of Immigration
Appeals’s (“BIA”) decision upholding the Immigration Judge’s (“IJ”) denial of his
claims for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we
deny in part and grant in part the petition.
1. “A petitioner may . . . move to [remand] for the purpose of submitting a
new application for relief, provided . . . the evidence sought to be offered is [1]
material and [2] was not available and could not have been presented at the former
hearing.” Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063–64 (9th Cir. 2008)
(citing 8 C.F.R. § 1003.2(c)(1)).1 Evidence is material if it will aid a petitioner in
“establish[ing] [a] prima facie [case] for relief,” and it “addresse[s] . . . the key
problems identified by the [immigration judge] in its initial order denying relief.”
Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005). Evidence is unavailable if
“it concern[s] events that did not occur until after the IJ hearing,” Goel v.
Gonzales, 490 F.3d 735, 738 (9th Cir. 2007) (citation omitted), or was otherwise
1
Section 1003.2(c)(1) governs motions to reopen. “The formal requirements
of a motion to remand and a motion to reopen are the same.” Romero-Ruiz, 538
F.3d at 1063 (citation omitted).
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not “reasonably available to the petitioner” at the time of the hearing, Oyeniran v.
Holder, 672 F.3d 800, 808 (9th Cir. 2012) (citations omitted).
“[The Court] review[s] the BIA’s denial of a motion to remand for abuse of
discretion,” Romero-Ruiz, 538 F.3d at 1062, and will only “reverse . . . if [the
BIA’s decision] is arbitrary, irrational, or contrary to law,” Singh v. I.N.S., 295
F.3d 1037, 1039 (9th Cir. 2002) (citation and internal quotation marks omitted).
In support of his motion to remand, Batila-Batila submitted a letter from his
mother, certified translations of various documents from the DRC’s Ministry of
Justice, a letter from his doctor in the DRC, an expert country conditions statement,
and an expert medical report evaluating his injuries.
Even if the evidence proffered is material to Batila-Batila’s claims for relief,
each piece “concerns events that allegedly occurred in [the DRC] well before his IJ
hearing.” Goel, 490 F.3d at 738; see also Bhasin, 423 F.3d at 987 (finding
proffered testimony was unavailable because it “concern[ed] events that happened
after the ‘former hearing’ before the IJ”). Because “the new information . . . was
available and capable of discovery [before the] hearing,” the BIA did not abuse its
discretion in denying Petitioner’s motion to remand. Guzman v. I.N.S., 318 F.3d
911, 913 (9th Cir. 2003).
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2. “In a post-REAL ID Act case [such as this], an IJ making a credibility
finding considers the totality of the circumstances, and all relevant factors,”
including “the consistency between the applicant’s or witness’s written and oral
statements . . . , the internal consistency of each such statement, the consistency of
such statements with other evidence [in the] record . . . , and any inaccuracies or
falsehoods in such statements, without regard to whether an inconsistency,
inaccuracy, or falsehood goes to the heart of the applicant’s claim.” Lai v. Holder,
773 F.3d 966, 970 (9th Cir. 2014) (citing 8 U.S.C. § 1158(b)(1)(B)(iii)) (internal
quotation marks and brackets omitted). “We review . . . adverse credibility
determinations[] for substantial evidence” and “will only overturn the IJ’s
conclusion when the evidence compels a contrary result.” Id. (emphasis added)
(citations and internal quotation marks omitted). “Where, as here, the BIA cites
[Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), adopts the IJ’s findings, and]
provides its own review of the evidence and law, we review both the IJ’s and the
BIA’s decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th Cir. 2011) (citation
omitted).
Here, the IJ and BIA based their adverse credibility determinations on three
different grounds: (1) that during his initial interview with the immigration
enforcement agent, Petitioner only expressed a fear of his stepfather and not the
4
DRC government, and that in his subsequent asylum applications, he never
mentioned a fear of his stepfather; (2) that contrary to his claims that the DRC
government persecuted him based on his political views, his dispute with his friend
Bayinga, whose father was a general in the Congolese government, appeared to be
over a woman; and (3) that the medical documents Petitioner provided appeared to
have been altered to indicate he was treated in 2011 (in accordance with his
testimony), when they were initially dated 2012.
As to the first ground, “[m]aterial [omissions] in the applicant’s account of
persecution are sufficient to support an adverse credibility finding.” Zamanov v.
Holder, 649 F.3d 969, 973 (9th Cir. 2011) (citation omitted). With respect to the
other two inconsistencies, Batila-Batila could not provide a satisfactory
explanation of them. Because substantial evidence supports the IJ and BIA’s
adverse credibility determinations, and the record does not “compel[] a contrary
result,” we deny the petition on this ground. Lai, 773 F.3d at 970 (citations and
internal quotation marks omitted).
3. In the absence of credible testimony regarding past persecution on
account of his political opinion (or any other protected ground), Batila-Batila’s
asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
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4. With respect to his CAT claim, neither the BIA nor the IJ considered the
country conditions evidence he submitted. Instead, the IJ and BIA based their
denial of Petitioner’s CAT claim on the adverse credibility finding. We do not
permit “‘a negative credibility determination in the asylum context to wash over
the torture claim’ . . . as ‘proper attention to relevant country conditions might lend
credence to [a petitioner’s] assertions of torture and cause the BIA to view them in
a different light.’” Taha v. Ashcroft, 389 F.3d 800, 802 (9th Cir. 2004) (quoting
Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir. 2001)). Therefore, we grant the
petition as to the CAT claim and remand for the BIA to reconsider that claim in
light of the country conditions evidence submitted. See Aguilar-Ramos v. Holder,
594 F.3d 701, 705 (9th Cir. 2010) (“Because the BIA failed to consider the
Country Report at all, the proper course of action is to remand with instructions
that the BIA reconsider [petitioner’s] CAT claim in light of the Country Report.”);
Farkas v. Sessions, 691 F. App’x 412, 415 (9th Cir. 2017) (citation omitted)
(same).
PETITION FOR REVIEW DENIED in part; GRANTED in part.
Each party shall bear their own costs.
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