Kumar v. Holder

FILED
NOT FOR PUBLICATION JUL 26 2012

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

FOR THE NINTH CIRCUIT

SUBHASH KUMAR, No. 08-70057

Petitioner, Agency No. A016-077-005

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

Respondent.

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

Submitted July 10, 2012 **
Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges, and BENSON, District
Judge.***

*
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).

*** The Honorable Dee V. Benson, District Judge for the U.S. District
Court for Utah, sitting by designation.
 Subhash Kumar (“Petitioner”), a citizen and native of India, seeks review of

a decision of the Board of Immigration Appeals (BIA) affirming an immigration

judge’s (IJ) decision to deny his applications for asylum and withholding of

removal under § 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.

§ 1231(b)(3), and for protection under the Convention Against Torture (CAT).

1. We dismiss for lack of jurisdiction Petitioner’s challenge to the BIA’s

determination that his application for asylum was untimely because that issue

involves disputed facts. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Hakeem v. I.N.S.,

273 F.3d 812, 815 (9th Cir. 2001); Hakopian v. Mukasey, 551 F.3d 843, 847 (9th

Cir. 2008).

2. We deny the petition as to withholding of removal and protection under

CAT because the adverse credibility findings are supported by substantial

evidence. Petitioner filed his applications before May 11, 2005, so we apply the

pre-REAL ID Act rules. Rizk v. Holder, 629 F.3d 1083, 1087 n.2 (9th Cir. 2011).

“We must uphold the IJ’s adverse credibility determination so long as one of

the identified grounds is supported by substantial evidence and goes to the heart of

the alien’s claim of persecution.” Id. at 1087 (internal quotation marks and

alterations omitted). To reverse the factual findings, “the evidence must compel a

different conclusion from the one reached by the BIA.” Zheng v. Holder, 644 F.3d

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829, 835 (9th Cir. 2011). Here the IJ relied on numerous inconsistencies in the

evidence and testimony provided by Petitioner. The irregularities contained in

Petitioner’s terrorist victim card along with general inconsistencies in his

testimony are supported by the record. These issues go to the heart of Petitioner’s

claim. Because the record does not compel reversal of the adverse credibility

finding, Petitioner has not shown that he is entitled to withholding of removal.

Because Petitioner’s CAT claim is based on the same testimony the IJ found

not credible, and he points to no other arguments showing it is more likely than not

he will be tortured if returned to India, his CAT claim also fails. See Farah v.

Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir. 2003).

Petition is DISMISSED in part, and DENIED in part.

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