FILED
JUL 26 2012
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAMANDEEP KAUR, No. 08-70639
Petitioner, Agency No. A099-351-537
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 19, 2012 **
San Francisco, California
Before: TASHIMA, CLIFTON, and MURGUIA, Circuit Judges.
Ramandeep Kaur petitions for review of the decision of the Board of
Immigration Appeals dismissing her appeal of the Immigration Judge’s denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
her applications for asylum, withholding of removal, and relief under the
Convention Against Torture. We deny the petition.
Where the BIA reviews the IJ’s findings of fact for clear error, adopting and
drawing “illustrative” examples from the IJ’s determination, we review the IJ’s
oral decision. Morgan v. Mukasey, 529 F.3d 1202, 1206 (9th Cir. 2008).
I. Asylum and Withholding of Removal
Substantial evidence supports the IJ’s adverse credibility finding and thus
the conclusion that Kaur failed to establish either past persecution or a well-
founded fear of future persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019 (9th
Cir. 2006). With regard to Kaur’s demeanor, the IJ noted that Kaur appeared to be
reciting a story during direct examination. Conversely, upon unexpected questions
from the court or the government, Kaur would claim not to understand and “would
suddenly become confused, dabbing her eyes with a towel, and ask repeatedly to
have questions repeated.” When challenged with inconsistencies, Kaur similarly
claimed nervousness and confusion. During a particularly tense moment when the
IJ confronted her with a serious inconsistency, Kaur appeared so perturbed that her
lawyer asked the IJ to allow her to “go to the bathroom.” In specifically pointing to
this stark contrast in Kaur’s behavior when confronted with inconsistencies, the IJ
provided a cogent basis for her demeanor finding.
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Though a psychologist noted that Kaur did not exhibit signs of lying or
exaggerating during her evaluation of Kaur, the IJ placed little value on the report.
The IJ emphasized that the description of Kaur’s demeanor in the evaluation was
“entirely different from that observed in [c]ourt” and further, that the evaluation
was taken three months after Kaur’s testimony. The IJ’s factual determination
regarding the weight of a psychologist’s evaluation may only be overturned if the
evidence compels a contrary result. See Almaghzar v. Gonzales, 457 F.3d 915, 922
(9th Cir. 2006). Here, the evidence does not compel the conclusion that the
evaluation was entitled to more weight. See id.
Next, the IJ noted inconsistencies between Kaur’s sworn declaration, Kaur’s
father’s affidavit, and Kaur’s testimony regarding how long she was held during
her second arrest and the way in which she was treated. When testifying about her
third arrest, Kaur changed her story several times regarding where she was taken
and when she was asked for her personal information. Finally, Kaur claimed that
when the police released her after her third arrest, they told her that if she did not
stop helping the Mann party they would kill her. She also noted that she had not
had any other opportunities to help the party. When the IJ asked Kaur why the
police would be looking for her if she was no longer helping the party, she
responded that she did not know. A moment later, however, her attorney reminded
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her that she had earlier testified that the police were looking for her because they
believed she had joined the militants, which Kaur affirmed was true. Kaur’s
second and third arrests, along with her asserted fear of the police, constituted
significant events and details that formed the basis of her asylum claim. Thus,
such blatant inconsistencies regarding these instances appropriately informed the
IJ’s adverse credibility determination. See Zamanov v. Holder, 649 F.3d 969, 973
(9th Cir. 2011). Additionally, that Kaur’s father’s affidavit was inconsistent with
Kaur’s testimony supports the IJ’s finding that the affidavit was not credible.
Finally, the IJ found it implausible that Kaur would be treated in exactly the
same manner during her first and second arrests, such that she could describe them
in almost exactly the same way. While “[s]peculation and conjecture cannot form
the basis of an adverse credibility finding, which must instead be based on
substantial evidence,” Shah v. INS, 220 F.3d 1062, 1071 (9th Cir. 2000), the fact
that Kaur initially described her second arrest differently in her declaration takes
the IJ’s observation beyond the realm of mere speculation, grounding it in
substantial evidence.
II. Convention Against Torture
When an applicant’s testimony is found not credible, the court must find that
the background documentation alone compels the conclusion that the applicant is
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more likely than not to be tortured in order to support relief under CAT. Shrestha
v. Holder, 590 F.3d 1034, 1048-49 (9th Cir. 2010). The IJ found that the
background documents Kaur provided indicated that the Indian government did
engage in torture, but that she had not established that she was suspected of
connections to the targeted group, namely Punjabi militants. Rather, Kaur had only
claimed that the Indian police suspected her of such ties, but because her testimony
was incredible, the IJ found that she failed to establish such a connection. A
reasonable adjudicator would not be compelled to otherwise connect Kaur to the
militants based solely on the background documents and would therefore not
conclude that it was more likely than not that she would be tortured if removed.
We thus have no basis to disturb the denial of relief under CAT.
PETITION DENIED.
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