FILED
NOT FOR PUBLICATION
AUG 13 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAJENDRA SHERCHAN, No. 11-73254
Petitioner, Agency No. A089-302-298
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted, Submission Deferred February 12, 2015**
Resubmitted August 13, 2018
San Francisco, California
Before: PAEZ and BERZON, Circuit Judges, and MORRIS,*** 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 Brian M. Morris, United States District Judge for the
District of Montana, sitting by designation.
Rajendra Sherchan, a citizen of Nepal, petitions for review of the decision of
the Board of Immigration Appeals (“BIA”) denying his application for withholding
of removal.1 Specifically, Sherchan challenges the BIA’s conclusion, relying on an
earlier immigration judge (“IJ”) finding, that Sherchan’s claims of past persecution
were not credible.
Where, as here, the BIA largely adopts the reasoning of the IJ in “simple
statement[s] of conclusion,” Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th
Cir. 2000), we review both decisions and use the IJ’s reasoning as “a guide to what
lay behind the BIA’s conclusion,” Shrestha v. Holder, 590 F.3d 1034, 1039 (9th
Cir. 2010) (quoting Avetova-Elisseva, 213 F.3d at 1197). We review the factual
findings underlying the decisions — in this case, the adverse credibility
determinations — for substantial evidence. Angov v. Lynch, 788 F.3d 893, 898 (9th
Cir. 2013).
Substantial evidence supports the adverse credibility determination in this
case. As the BIA and IJ noted, Sherchan gave conflicting accounts of where an
attack took place and how he knew his alleged attackers’ identities. He was given
1
In his opening (and only) brief, Sherchan does not challenge the denial of
his asylum application as time-barred or the determination that he is not entitled to
protection under the Convention Against Torture. We therefore address only his
claim for withholding of removal.
2
an appropriate opportunity to explain these discrepancies, see Singh v. Gonzales,
439 F.3d 1100, 1105 (9th Cir. 2006), overruled on other grounds by Maldonado v.
Lynch, 786 F.3d 1155 (9th Cir. 2015) (en banc), and could not. Sherchan also
testified inconsistently about who reported the most serious attack to the police —
whether he did, as he first said; or his father, as he later said; or his wife, whose
name was on the police report.
The BIA and IJ also reasonably found that letters arguably corroborating
Sherchan’s account were not credible evidence. Sherchan testified that the letters
were provided by various organizations to “condemn” the attacks against him. But
when given the opportunity, Sherchan could not explain why these organizations
would furnish him with private “condemnation” letters not meant for wider
publication. Sherchan testified that a friend provided him with one such letter
before he came to the United States in 2007; that letter, though, was dated in 2009,
a discrepancy Sherchan could not explain when asked.
The inconsistencies identified by the BIA and IJ represent “specific, cogent
reason[s]” for arriving at an adverse credibility finding, de Leon-Barrios v. INS,
116 F.3d 391, 394 (9th Cir. 1997); see also 8 U.S.C. §§ 1231(b)(3)(C),
1158(b)(1)(B)(iii). Those reasons are bolstered by the IJ’s observation that
Sherchan gave “halting” or “recited” answers, and was at times unresponsive to
3
questions or unable to explain his answers in detail. See 8 U.S.C.
§ 1158(b)(1)(B)(iii). In the absence of any credible evidence of past persecution,
the BIA and IJ reasonably concluded that Sherchan had not met his burden to
prove, by a preponderance of the evidence, that his “life or freedom would be
threatened” in Nepal on account of a protected ground. 8 C.F.R. § 208.16(b); see
also Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir. 2011).
The petition for review is DENIED.
4