Shrestha v. Holder

• Decision Date: 05 January 2010
• Docket Number: No. 08-74751.,08-74751.
• Citation: 590 F.3d 1034
• Parties: Anup SHRESTHA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

590 F.3d 1034

Anup SHRESTHA, Petitioner, v. Eric H. HOLDER, Jr., Attorney General, Respondent.

No. 08-74751.

United States Court of Appeals, Ninth Circuit.

Submitted December 10, 2009.^*

Filed January 5, 2010.

Patrick Cantor, Buttar & Cantor LLP, Tukwila, WA, for petitioner Anup Shrestha.

Tony West, Assistant Attorney General, Civil Division, Anthony C. Payne, Senior Litigation Counsel, Office of Immigration Litigation, and Colette J. Winston, Attorney, Office of Immigration Litigation, for respondent Eric H. Holder, Jr.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A079-811-128.

Before: RONALD M. GOULD and RICHARD C. TALLMAN, Circuit Judges, and ROGER T. BENITEZ,^** District Judge.

GOULD, Circuit Judge:

OPINION

Petitioner Anup Shrestha petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing his appeal of an immigration judge's ("IJ") denial of his application for asylum, withholding of removal, and protection under the United Nations Convention Against Torture ("CAT"). We dismiss the petition for review as to Shrestha's asylum claim for lack of jurisdiction.¹ As to Shrestha's remaining claims, we have jurisdiction under 8 U.S.C. § 1252, and we deny the petition for review.

I

Shrestha is a native and citizen of Nepal who was admitted to the United States as a nonimmigrant student on a temporary basis in November 1998. Shrestha attended community college until December 2001, after which he stopped going to school. An immigration enforcement agent served Shrestha in April 2007 with a notice to appear and at a hearing, Shrestha, through counsel, conceded removability.

In July 2007, Shrestha applied for asylum, withholding of removal, and protection under the CAT. Shrestha explained in his asylum application that, at his family home in Nepal, he "was beaten by the Maoist[s] with a rod and bamboos" after "[t]hey came to [his] house to recruit[him]," and that he is "afraid that the Maoist[s] may again attack[him] and force [him] to join them."

Shrestha later filed a declaration in support of his application for asylum, withholding of removal, and CAT relief, describing his confrontation with the Maoists and subsequent events in more detail. Shrestha declared as follows: In October 1998, five individuals that identified themselves as Maoists came to his family's home in Nepal with rods and bamboo. The Maoists tried to recruit him to join their cause of insurgency against the Nepalese government. When Shrestha refused, an individual grabbed Shrestha by the arms. Shrestha panicked, tried to escape, but was caught and beaten. Shrestha lost consciousness and awoke in a hospital. When Shrestha was released from the hospital a week later, Shrestha's parents asked him to stay with his uncle, which Shrestha did until he came to the United States one month later in November 1998. After coming to the United States, Shrestha attended a community college. When Shrestha lost his job in 2001, he quit school because he could no longer afford the tuition, and consequently he lost his student visa status. Shrestha's parents asked him not to come back to Nepal because the Maoist revolution was at its peak and "Maoists ha[d] been inquiring about [his] whereabouts frequently."

At a hearing before the IJ, Shrestha described the confrontation he had with the Maoists at his family home. Shrestha explained that he did not ask his parents for a statement in support of his application for relief because they are illiterate and, in any event, Shrestha concluded that his parents would not be able to help because they too feared the Maoists. Shrestha said that the Maoists had not confronted him except the single time, that none of his other family members had experienced problems with the Maoists, and that he was aware of only two instances when the Maoists had inquired about him since the confrontation, the most recent of which was in 2001.

In October 2007, the IJ denied all relief that Shrestha sought. The IJ concluded that Shrestha's asylum claim was time barred. The IJ denied Shrestha's claims for asylum and for withholding of removal on three alternative substantive grounds. First, the IJ found Shrestha not credible because, in response to questions concerning his problems with the Maoists, Shrestha was at times unresponsive, and his testimony was undetailed, inconsistent, and uncorroborated by a supportive statement from Shrestha's parents, with whom Shrestha had regular communication. Without credible testimony, Shrestha could not show that he was a refugee eligible for asylum and withholding of removal. Second, the IJ denied relief on the basis of materially changed country conditions in light of recent political developments in Nepal including a peace accord between the Maoists and the Nepalese government. Third, the IJ denied relief because Shrestha could be expected to relocate elsewhere in Nepal given that Shrestha had no problems with the Maoists during the time he was living with his uncle. As to Shrestha's CAT claim, the IJ concluded that Shrestha had not shown that there was a "clear probability of the risk of torture" if Shrestha returned to Nepal.

In October 2008, the BIA affirmed the IJ's decision and dismissed Shrestha's appeal in a two-page order. The BIA agreed with the IJ that Shrestha's asylum application was time barred. The BIA found no clear error in the IJ's adverse credibility finding and concluded that a supportive statement from Shrestha's parents was reasonably expected. On the basis of the IJ's adverse credibility finding and Shrestha's failure to provide a corroborative affidavit from his parents, the BIA concluded that Shrestha had not met his burden of proof for asylum, and therefore Shrestha could not meet the higher burden of proof for withholding of removal. The BIA did not address the IJ's alternative conclusions that denial of asylum and withholding of removal relief was also warranted on the basis of changed country conditions and the possibility of relocation. The BIA agreed with the IJ that Shrestha was not entitled to CAT protection because Shrestha did not show that he would be subjected to torture on return to Nepal.

Shrestha timely petitioned for review. He has conceded on appeal that his asylum claim was time barred. Therefore, we lack jurisdiction to review Shrestha's petition as to his asylum claim and we dismiss that part of Shrestha's petition for review. See Ramadan v. Gonzales, 479 F.3d 646, 649-50 (9th Cir.2007). We next address Shrestha's claims for withholding of removal and for CAT relief, over which we do have jurisdiction.

II

When the BIA conducts its own review of the evidence and law rather than adopting the IJ's decision, our review "is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted." Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006) (quoting Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000)). But when, as here, the BIA's "phrasing seems in part to suggest that it did conduct an independent review of the record," but the BIA's analysis on the relevant issues is confined to a "simple statement of a conclusion," we "also look to the IJ's oral decision as a guide to what lay behind the BIA's conclusion." Avetova-Elisseva v. INS, 213 F.3d 1192, 1197 (9th Cir.2000).

III

We review for substantial evidence the BIA's determination that Shrestha is not eligible for withholding of removal. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir.2007). The BIA affirmed the IJ's denial of Shrestha's withholding of removal claim on the basis of the IJ's adverse credibility determination, and we review adverse credibility determinations under the substantial evidence standard. Soto-Olarte v. Holder, 555 F.3d 1089, 1091 (9th Cir.2009).

To qualify for withholding of removal, a petitioner must establish a "clear probability" that his "life or freedom would be threatened" if he returned to his homeland on account of "race, religion, nationality, membership in a particular social group, or political opinion." Ahmed, 504 F.3d at 1199 (citations omitted). Eligibility for withholding of removal can be established by demonstrating past persecution, see id., or by "demonstrat[ing] ... a subjective fear of persecution in the future ... that ... is objectively reasonable," Wakkary v. Holder, 558 F.3d 1049, 1060 (9th Cir.2009).

A

For applications for asylum, withholding of removal, and CAT relief made on or after May 11, 2005, like Shrestha's, the REAL ID Act created the following new standards governing adverse credibility determinations:

Considering the totality of the circumstances, and all relevant factors, a trier of fact may base a credibility determination on the demeanor, candor, or responsiveness of the applicant or witness, the inherent plausibility of the applicant's or witness's account, the consistency between the applicant's or witness's written and oral statements ..., the internal consistency of each such statement, the consistency of such statements with other evidence of record ..., and any inaccuracies or falsehoods in such statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor.

Pub.L. No. 109-13, Div. B, §§ 101(a)(3), 101(c), 101(d), 119 Stat. 231, 303 (2005) (codified at 8 U.S.C. §§ 1158(b)(1)(B)(iii) (asylum); 1231(b)(3)(C) (adopting the standard in 8 U.S.C. § 1158(b)(1)(B) for withholding of removal); 1229a(c)(4)(C) (all other relief)).

The Ninth Circuit has only recently begun to apply the new provisions to adverse credibility determinations. See, e.g., Malkandi v. Holder, 576 F.3d 906 (9th Cir. 2009). It is plain from the REAL ID Act's terms that an adverse credibility determination must be made after considering "the totality of circumstances, and all relevant factors." It is also plain that relevant factors will include demeanor, candor,...