FILED
NOT FOR PUBLICATION MAY 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BALBIR SINGH DHALIWAL, No. 08-74719
Petitioner,
Agency No. A97-111-147
v.
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 16, 2013 **
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.***
Balbir Singh Dhaliwal (“Petitioner”), a native and citizen of India, petitions
*
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 Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s (“IJ”) decision denying his applications for
asylum and withholding of removal. Petitioner also appeals the BIA’s affirmance
of the IJ’s finding that Petitioner’s testimony during removal proceedings was not
credible and that Petitioner filed a frivolous application for asylum. This court has
jurisdiction under 8 U.S.C. § 1252, and we deny the petition.1
Adverse credibility findings are reviewed for substantial evidence, meaning
they are “conclusive unless any reasonable adjudicator would be compelled to
conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2012); Malkandi v. Holder,
576 F.3d 906, 917 (9th Cir. 2009). In pre-REAL ID cases, an adverse credibility
ruling must be upheld so long as identified inconsistencies go to “the heart of [the]
asylum claim.” Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir. 2002) (quotation
omitted). The IJ, however, must give the asylum applicant a “reasonable
opportunity” to explain inconsistencies in his testimony. Chen v. Ashcroft, 362
F.3d 611, 618 (9th Cir. 2004).
Here, the BIA discussed specific inconsistencies in Petitioner’s testimony,
his application for asylum, and other documentary evidence introduced during
1
Since Petitioner filed his application for relief before May 11, 2005, pre-
REAL ID Act standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1
(9th Cir. 2005).
2
removal proceedings that cast substantial doubt upon his identity, membership in a
persecuted group, and the veracity of his accounts of persecution. Petitioner argues
that the IJ did not provide him a reasonable opportunity to explain certain
discrepancies and refused to accept his reasonable explanations for others. The
record, however, reveals that counsel and the IJ not only attempted to clarify
inconsistencies in Petitioner’s presentation with further inquiry, but that
Petitioner’s proffered explanations only generated additional ambiguity. Because
no reasonable factfinder would be compelled to reach the opposite conclusion, we
hold that substantial evidence supports the BIA’s adverse credibility determination.
We review de novo a finding that an applicant filed a frivolous application
for asylum and whether the IJ complied with the requisite procedural safeguards.
See Yan Liu v. Holder, 640 F.3d 918, 925 (9th Cir. 2011); Ahir v. Mukasey, 527
F.3d 912, 917 (9th Cir. 2008). “[A]n asylum application is frivolous if any of its
material elements is deliberately fabricated.” 8 C.F.R. § 208.20 (2012).
First, Petitioner does not dispute whether he received proper notice of the
consequences of filing a frivolous asylum application. Second, the IJ found
deliberate fabrication based on the unreliability of Petitioner’s specific
documentary submissions, discrepancies between those submissions and his
testimony, and his inability to clarify such discrepancies upon further inquiry.
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Third, the record supports the frivolousness finding by a preponderance of the
evidence. Finally, the IJ afforded Petitioner adequate opportunities to address the
potentially fraudulent aspects of his asylum application. For these reasons, the
frivolousness finding stands.
Where substantial evidence supports an adverse credibility determination
concerning key elements of a claim for withholding of removal, this Court must
defer to those credibility findings in upholding the BIA’s denial of that relief. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because the BIA’s
adverse credibility ruling concerns Petitioner’s identity, membership in a protected
group, and persecution on account of that membership, substantial evidence
supports its denial of Petitioner’s application for withholding of removal. See
Malkandi, 576 F.3d at 912.
PETITION DENIED.
4