Shah v. Holder

FILED
NOT FOR PUBLICATION DEC 22 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

YUSUF SHAH, No. 07-75069

Petitioner, Agency No. A98-251-777

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted November 14, 2011
San Francisco, California

Before: HAWKINS and M. SMITH, Circuit Judges, and DUFFY, District Judge.**

Yusuf Shah, a native and citizen of India, petitions for review of a decision

of the Board of Immigration Appeals (“BIA”) affirming the Immigration Judge’s

(“IJ”) decision to deny Shah’s applications for asylum, withholding of removal,

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
and relief under the Convention Against Torture (“CAT”). Shah contends that the

BIA’s adverse credibility determination was not based on substantial evidence, and

that the BIA erred in dismissing his asylum claim as untimely because he had

demonstrated extraordinary circumstances excusing his delay. We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

The BIA correctly held that Shah’s asylum claim was time-barred. Shah

applied for asylum more than one year after his last entry into the United States

and has not demonstrated any extraordinary circumstances justifying his delay. 8

U.S.C. § 1158(a)(2)(B),(D).

We review a finding of adverse credibility for substantial evidence. Wang v.

INS, 352 F.3d 1250, 1253 (9th Cir. 2003). An adverse credibility determination

will be upheld on review unless “any reasonable adjudicator would be compelled

to conclude to the contrary.” Antonyan v. Holder, 642 F.3d 1250, 1254 (9th Cir.

2011) (citation omitted).

The BIA based its adverse credibility finding on misrepresentations Shah

made on a worksheet in preparation for his bond hearing and discrepancies

between Shah’s testimony and declaration and the affidavits of his friends.

Shah’s misrepresentations on his bond worksheet support an adverse

credibility finding. The fact that a petitioner “chose to lie to immigration

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authorities . . . always counts as substantial evidence supporting an adverse

credibility finding.” Singh v. Holder, 643 F.3d 1178, 1181 (9th Cir. 2011). The

BIA relied on Shah’s oral testimony during his removal hearing in which he

admitted that he lied on his bond worksheet.

Shah also testified that he and his two friends were detained and beaten by

the police on two separate occasions. However, his friends’ affidavits do not

mention these events. These are material omissions since they concern the basis of

Shah’s withholding of removal claim and are thus sufficient to support an adverse

credibility determination. See Zamanov v. Holder, 649 F.3d 969, 973 n.1 (9th Cir.

2011). Absent credible testimony, Shah’s CAT claim fails. See Farah v. Ashcroft,

348 F.3d 1153, 1156 (9th Cir. 2003).

PETITION DENIED.

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