Manes v. Sessions

• Decision Date: 27 November 2017
• Docket Number: No. 14-73313,14-73313
• Citation: 875 F.3d 1261
• Parties: Malak MANES, Petitioner, v. Jefferson B. SESSIONS III, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

875 F.3d 1261

Malak MANES, Petitioner,

v.Jefferson B. SESSIONS III, Attorney General, Respondent.

No. 14-73313

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2017 San Francisco, California

Filed November 27, 2017

Morgan Russell (argued), Anne E. Peterson, and Robert Jobe, Law Office of Robert B. Jobe, San Francisco, California, for Petitioner.

Andrew B. Insenga (argued), Trial Attorney; Douglas E. Ginsburg, Assistant Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Respondent.

Before: J. Clifford Wallace, A. Wallace Tashima, and Paul J. Watford, Circuit Judges.

PER CURIAM:

Malak Manes, a native and citizen of India, petitions for review of the Board of Immigration Appeals' (Board) order affirming an immigration judge's (IJ) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Manes argues that he was persecuted in India because of his support for the India National Order Lok Dal (INLD), one of the country's opposition political parties. We have jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny Manes' petition.

The Board affirmed the IJ's denial of relief on the basis of the IJ's adverse credibility determination. "Because credibility determinations are findings of fact by the IJ, they ‘are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’ " Rizk v. Holder , 629 F.3d 1083, 1087 (9th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B) ). We afford a "healthy measure of deference to agency credibility determinations," mindful that "IJs are in the best position to assess demeanor and other credibility cues that we cannot readily access [sic] on review." Shrestha v. Holder , 590 F.3d 1034, 1041 (9th Cir. 2010).

Under the REAL ID Act, which applies here, "there is no presumption that an applicant for relief is credible, and the IJ is authorized to base an adverse credibility determination on ‘the totality of the circumstances' and ‘all relevant factors.’ " Ling Huang v. Holder , 744 F.3d 1149, 1152–53 (9th Cir. 2014) (quoting 8 U.S.C. § 1158(b)(1)(B)(iii) ). Such factors include the alien's "demeanor, candor, or responsiveness." 8 U.S.C. § 1158(b)(1)(B)(iii). Demeanor findings "should specifically point out the noncredible aspects of the petitioner's demeanor." Shrestha , 590 F.3d at 1042. The IJ may also consider inconsistencies between the petitioner's statements and other evidence of record. 8 U.S.C. § 1158(b)(1)(B)(iii). "When an inconsistency is cited as a factor supporting an adverse credibility determination, that inconsistency should not be a mere trivial error such as a misspelling, and the petitioner's explanation for the inconsistency, if any, should be considered in weighing credibility." Shrestha , 590 F.3d at 1044 (citations omitted). Regardless of the factors relied upon by the IJ, the IJ must provide "specific and cogent reasons" to support an adverse credibility determination. Id. at 1042.

Here, the IJ properly considered the totality of the circumstances and supported her adverse credibility determination with specific and cogent reasons. Manes fails to show that the evidence of record compels a contrary result.

We reject Manes' argument that the IJ's demeanor findings were insufficiently precise. The IJ stated that Manes was "visibly nervous" when confronted with evidence that contradicted his claim and "would move his hands to the extent that his bracelets would make a noise." The IJ also found that Manes' speech was "notably faster" and "had an almost desperate tone" when Manes was responding to confrontations or difficult questions. Moreover, the IJ explained that Manes' anxious demeanor on cross-examination was "in sharp contrast" to his "calm and measured" demeanor on direct, characterizing the contrast as "remarkable." These are specific, first-hand observations—precisely the kind of credibility cues that are the special province of the factfinder. Given the IJ's unique ability to assess first- hand a petitioner's demeanor, "it would be extraordinary for a reviewing court to substitute its second-hand impression of the petitioner's demeanor ... for that of the IJ." Jibril v. Gonzales , 423 F.3d 1129, 1137 (9th Cir. 2005).

Manes contends that the IJ should have commented on Manes' demeanor and credibility at the time of occurrence, so that the transcript would reflect the exact moments during the hearing when the IJ was assessing Manes' demeanor. It is true that in some of our cases a hearing transcript has provided evidence supporting an IJ's demeanor findings. See, e.g. , Huang , 744 F.3d at 1154–56. But our case law does not require the IJ to conduct a running commentary on the alien's credibility. See Paredes–Urrestarazu v. U.S. INS , 36 F.3d 801, 818 (9th Cir. 1994) ("We certainly cannot expect that the factual basis for eye-witness observations always will find support in the hearing transcript."). In fact, we have indicated that an IJ can meet the IJ's obligation to provide "specific examples" of the petitioner's demeanor by making "explicit reference to particular unrecorded aspects of demeanor," Kin v. Holder , 595 F.3d 1050, 1056 (9th Cir. 2010), including "the expression of [the petitioner's] countenance, how he sits or stands, whether he is inordinately nervous, his coloration during critical examination, the modulation or pace of his speech and other non-verbal communication." Huang , 744 F.3d at 1153 (quoting Shrestha , 590 F.3d at 1042 ). These are precisely the aspects of Manes' demeanor the IJ referenced here. Thus, the IJ's demeanor findings were sufficiently specific and supported by substantial evidence.

We also reject Manes' argument that the Board did not have substantial evidence to conclude that inconsistencies between his testimony and the documentary evidence of record undermined his credibility. Manes testified he received stitches on his left hand after a March 2009 attack by a knife-wielding assailant. However, Manes submitted a letter purporting to be from the doctor in India who treated him after the March 2009 attack that states only that Manes suffered injuries to his "left arm and left shoulder" and received stitches on his left arm. There is no mention of "hand" in the doctor's letter. This inconsistency bears directly on Manes'...