FILED
NOT FOR PUBLICATION
FEB 22 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMKAR SHRESTHA, No. 17-70096
Petitioner, Agency No. A206-361-030
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2019**
San Francisco, California
Before: McKEOWN and W. FLETCHER, Circuit Judges, and EZRA,*** District
Judge.
Omkar Shrestha, a native and citizen of Nepal, petitions for review of the
Board of Immigration Appeals’ (“BIA”) denial of his application for asylum,
*
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 David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
withholding of removal, and relief under the Convention Against Torture (“CAT”).
Shrestha claimed he was eligible for relief because he had been physically attacked
by Maoists due to his membership in the Nepali Congress Party.
“Where, as here, the BIA agrees with and incorporates specific findings of
the [Immigration Judge (“IJ”)] while adding its own reasoning, we review both
decisions.” Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We have
jurisdiction under 8 U.S.C. § 1252 and we affirm.
Asylum and Withholding of Removal
An applicant for asylum and withholding of removal bears the burden of
establishing eligibility. 8 U.S.C. §§ 1158(b)(1)(B)(I), 1229a(c)(4)(A).
“The testimony of the applicant may be sufficient to sustain the applicant’s
burden without corroboration, but only if the applicant satisfies the trier of fact that
the applicant’s testimony is credible . . . .” 8 U.S.C. § 1158(b)(1)(B)(ii). The
REAL ID Act, which governs claims filed after May 11, 2005, provides the
standard for determining an applicant’s credibility, including a list of relevant
factors. 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha v. Holder, 590 F.3d 1034, 1044
(9th Cir. 2010). “For each factor forming the basis of an adverse credibility
determination, the IJ should refer to specific instances in the record that support a
conclusion that the factor undermines credibility.” Shrestha, 590 F.3d at 1044.
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The BIA here upheld the IJ’s adverse credibility determination. An adverse
credibility determination is reviewed for substantial evidence. See Gui v. INS, 280
F.3d 1217, 1225 (9th Cir. 2002). “Under the substantial evidence standard, the
court upholds the BIA’s determination unless the evidence in the record compels a
contrary conclusion.” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting
Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)).
The evidence in the record does not compel a positive credibility
determination. The IJ permissibly relied on inconsistencies between Shrestha’s
credible fear interview—which was conducted under oath through an interpreter
and the admission of which Shrestha did not challenge—and his hearing testimony,
as well as the omission of the alleged attack on Shrestha from his father’s
supporting letter. As required, the IJ gave Shrestha an opportunity to explain the
inconsistencies. See Shrestha, 590 F.3d at 1044 (holding that an immigration
judge “should consider . . . the petitioner’s explanation for a perceived
inconsistency”). Shrestha’s explanations, while plausible, were not so obviously
correct that the IJ was compelled to credit them. See Rizk v. Holder, 629 F.3d
1083, 1088 (9th Cir. 2011) (“If the IJ reasonably rejects the alien’s explanation, . . .
the IJ may properly rely on the inconsistency as support for an adverse credibility
determination.” (internal citations omitted)).
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The IJ also based his adverse credibility determination on Shrestha’s
demeanor, namely on a “pattern of evasiveness.” Though demeanor findings are
accorded “special deference” by reviewing courts, aspects of demeanor
“concerning the nature of petitioner’s testimony” that are “ascertainable from the
record” may be reviewed by courts for substantial evidence. Arulampalam v.
Ashcroft, 353 F.3d 679, 685–86 (9th Cir. 2003). “Absent specific examples of
evasiveness or inconsistency, a general declaration of evasiveness or inconsistency
is insufficient to support adverse credibility.” Lei Li v. Holder, 629 F.3d 1154,
1158–59 (9th Cir. 2011). Here, though, the IJ referred to a specific example of
evasiveness, and we are not compelled by the record to conclude that the IJ’s
evasiveness finding was erroneous. Under the “totality of the circumstances,”
there is substantial evidence supporting the adverse credibility determination
upheld by the BIA. See 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha, 590 F.3d at 1044.
We next consider whether, absent credible testimony, Shrestha can establish
eligibility for asylum or withholding of removal based on documentary evidence
alone. “An applicant alleging past persecution has the burden of establishing that
(1) his treatment rises to the level of persecution; (2) the persecution was on
account of one or more protected grounds; and (3) the persecution was committed
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by the government, or by forces that the government was unable or unwilling to
control.” Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010).
Here, even assuming Shrestha’s documentary evidence shows treatment
rising to the level of persecution on the basis of his political opinion, there is
substantial evidence supporting the IJ’s finding that Shrestha failed to establish that
his persecutors, Maoists, are “forces that the government was unable or unwilling
to control.” See id. The country conditions documents show active police
responses to Maoist violence, including numerous arrests following violent
demonstrations. Though Shrestha asserts that police did not act in his case because
of “pressure,” the IJ found the letter from local police indicated a serious, ongoing
investigation and we are not compelled to conclude the contrary. Substantial
evidence supports the BIA’s denial of asylum and withholding of removal.
Convention Against Torture
An applicant is eligible for CAT relief if he can show it is “more likely than
not” he would be tortured in the country of removal. 8 C.F.R. § 1208.16(c)(2).
Torture is defined as “severe pain or suffering, . . . inflicted by or at the instigation
of or with the consent or acquiescence of a public official or other person acting in
an official capacity.” 8 C.F.R. § 1208.18(a)(1). Shrestha has not shown it is “more
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likely than not” he would be tortured with the “consent or acquiescence” of Nepali
public officials. Substantial evidence supports the BIA’s denial of CAT relief.
PETITION DENIED.
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