Harjinder Chana v. Jefferson Sessions, III ( 2018 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 05 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
HARJINDER SINGH CHANA, No. 16-70066
Petitioner, Agency No. A088-547-312
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 31, 2018**
Seattle, Washington
Before: HAWKINS, McKEOWN, and W. FLETCHER, Circuit Judges.
Petitioner Harjinder Chana (“Chana”), a native and citizen of India, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order affirming the
immigration judge’s (“IJ”) denial of his application for asylum. We deny the petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Substantial evidence supports the BIA and IJ’s adverse credibility
determination. Chana contends he was persecuted in India because of his involvement
in the All India Sikh Student Federation and Shirmani Akali Dal Mann parties, and
that he was arrested and beaten three times: in 1984, 2004, and 2009. Chana’s
testimony and declaration indicated the second arrest occurred just as he stepped
outside the gurdwara on June 6, 2004. However, the declaration of his wife, which
he submitted to corroborate his claim, indicates that she was an eyewitness as the
police raided their home and arrested him on June 6, 2004. As the IJ and BIA noted,
this was a significant inconsistency about one of the core events forming the basis for
his claim of persecution. See Manes v. Sessions, 875 F.3d 1261, 1264–65 (9th Cir.
2017) (affirming adverse credibility determination based on inconsistencies between
testimony and documentary evidence, particularly where documents went directly to
the claimed basis for persecution). The IJ was not required to credit Chana’s
explanation that, despite his testimony that he had read his wife’s declaration, neither
he nor his wife noticed the error, and it was merely a typographical error. See
Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011).
Nor does the medical report Chana submitted corroborate his claims regarding
the 2004 arrest; as the IJ and BIA noted, the handwritten report is virtually illegible
and not dated contemporaneously with the actual incident. In addition, Chana’s
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declaration indicates he was treated with stitches for a head wound following the 2004
incident, whereas he claims the submitted medical report verifies “injuries to his soft
tissue and his abdomen.” Thus, even if we were to accept his interpretation of the
document, it would not corroborate his account.
Finally, to the extent Chana contends the IJ should have sua sponte granted him
a continuance to afford him an opportunity to bring corroborating witnesses to court
to affirm or explain their declarations, Chana failed to exhaust this claim before the
BIA. Because this is an alleged procedural error that the BIA could have corrected
within the administrative tribunal if afforded the opportunity, Chana’s failure to
exhaust has waived the claim and deprived us of jurisdiction over it. See Sola v.
Holder, 720 F.3d 1134, 1135–36 (9th Cir. 2013).
Petition DENIED in part; DISMISSED in part for lack of jurisdiction.
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