FILED
NOT FOR PUBLICATION
FEB 9 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SURAT SINGH BHANDARI, No. 19-73035
Petitioner, Agency No. A206-184-847
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 2, 2021**
San Francisco, California
Before: RAWLINSON and BUMATAY, Circuit Judges, and EATON, Judge,
United States Court of International Trade.
*
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).
***
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
Petitioner Surat Singh Bhandari (Bhandari), a native and citizen of Nepal,
seeks review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal of the denial of applications for asylum, withholding of
removal, and relief under the Convention Against Torture (CAT). Bhandari
alleges that he fears harm from extremist Communist Maoists should he return to
Nepal.
Substantial evidence supports the agency’s adverse credibility
determination. See Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020)
(reviewing adverse credibility determination for substantial evidence). As the BIA
pointed out, Bhandari’s testimony lacked detail regarding facts not mentioned in
his declaration in support of asylum. See Iman v. Barr, 972 F.3d 1058, 1065 (9th
Cir. 2020) (“The lack of detail in an applicant’s testimony can be a relevant factor
for assessing credibility.”). For example, consistent with his declaration, Bhandari
gave the exact date of a Maoist attack in 2004 and how many people from each
side died, as well as the specific date in 2008 when certain Maoists assaulted him
and the names of those attackers. But Bhandari could not recall when he moved to
Kathmandu, when his father first received threats from Maoists, his father’s
birthday or age, or details about a threatening letter Maoists sent Bhandari.
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The BIA also noted that Bhandari’s testimony was inconsistent and
implausible regarding the Maoists’ behavior and actions. See Don v. Gonzales,
476 F.3d 738, 743 (9th Cir. 2007) (holding that implausible testimony regarding
interactions with alleged persecutors supported adverse credibility finding). On the
one hand, Bhandari testified that Maoists battled the army and police and acted
with impunity. On the other hand, Bhandari related incidents where Maoists were
scared off by villagers or the mere threat of police.
In another example, Bhandari testified that fifteen armed Maoist militants
who had just attacked government forces demanded that his family provide them
with food and shelter. When they refused, the Maoists beat Bhandari. But the
Maoists did not force their way inside the house, even though the Bhandaris were
weaponless.
In addition, the BIA considered that although Bhandari testified that Maoists
beat him severely on several occasions, he only received minor treatment, such as a
massage, ointments, bandages, cold compression, vitamins, some medicines, and
exercises. The Immigration Judge (IJ) gave little weight to a copy of a hand-
written letter from a physiotherapist, whom Bhandari described as “like a brother”
to him, because the original was unavailable and the letter contained phrases nearly
identical to another document Bhandari had submitted to the immigration court.
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The BIA agreed with the IJ that the documents Bhandari submitted did not
adequately corroborate his claims. Bhandari does not challenge this determination,
so he has waived that issue. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1260
(9th Cir. 1996).
Finally, the BIA relied on the IJ’s observations of Bhandari’s demeanor, to
which we give “special deference.” Ling Huang v. Holder, 744 F.3d 1149, 1154
(9th Cir. 2014). The BIA highlighted that, “upon cross-examination, the
respondent began blinking rapidly, shifting in his seat, fidgeting, and looking
down.”
Contrary to Bhandari’s contention, the agency did not “cherry-pick” the
evidence. Rather, the evidence was thoroughly discussed, analyzed, and explained.
Substantial evidence supports the adverse credibility determination. See
Velasquez-Gaspar v. Barr, 976 F.3d 1062, 1064 (9th Cir. 2020) (holding that
under the substantial evidence standard of review, the agency’s findings are
“conclusive unless any reasonable adjudicator would be compelled to conclude to
the contrary”).
Because Bhandari failed to meet his burden of establishing eligibility for
asylum, he necessarily fails to meet the higher burden of proof required for
withholding of removal. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th
4
Cir. 2016).
Any argument as to Bhandari’s CAT claim was waived because he did not
discuss the matter in his opening brief. See Velasquez-Gaspar, 976 F.3d at 1065.
PETITION DENIED.
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