FILED
NOT FOR PUBLICATION NOV 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GAM GURUNG, No. 08-70201
Petitioner, Agency No. A098-829-384
v.
MEMORANDUM*
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2011**
San Francisco, California
Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.
Gam Gurung, a native and citizen of Nepal, seeks review of a Board of
Immigration Appeals order dismissing his appeal from an Immigration Judge’s (“IJ”)
decision denying his application for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
*
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).
§ 1252. Reviewing the agency’s factual findings for substantial evidence and
applying the standards governing adverse credibility determinations created by the
Real ID Act, see Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), we deny
the petition for review.
Before the IJ, Gurung testified that: (1) he never voiced his opposition to or
opinion of the Nepalese government, directly contradicting an affidavit he submitted
in support of his application in which his friend described him as an “avid critic” of
the police and army who would raise his concerns at social and religious gatherings;
and (2) he did not know whether his brother-in-law’s brother Hari Prasad Bhattarai
was involved in politics or anything other than a transport business, directly
contradicting his own earlier declaration in which he described Prasad’s membership
in a non-governmental organization that tracks government and army misconduct.
These inconsistencies are nontrivial because Gurung claims persecution by the
government based on his political beliefs and on the imputed political beliefs of
Prasad. Given only speculative and unconvincing explanations from Gurung for the
inconsistencies, substantial evidence supports the IJ’s adverse credibility
determination. See id. at 1043-44 (holding that an inconsistency may support an
adverse credibility determination if not trivial and considered in light of the “totality
of the circumstances,” including the petitioner’s explanation for the inconsistency).
2
In the absence of credible testimony, Gurung’s asylum and withholding of
removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Because Gurung’s CAT claim is based on the same testimony found to be not
credible, that claim also fails. See id. at 1156-57.
PETITION DENIED.
3