Osama Abdel Malek v. Loretta E. Lynch , 632 F. App'x 373 ( 2016 )

FILED
NOT FOR PUBLICATION JAN 26 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSAMA FAROUK BADAWAY ABDEL No. 12-74233
MALEK,
Agency Nos. A088-272-532
Petitioner,
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Osama Farouk Badaway Abdel Malek, a native and citizen of Egypt,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for asylum, withholding of removal, and relief under the Convention
*
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).
Against Torture (“CAT”), and determining Abdel Malek filed a frivolous asylum
application. We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations created by the REAL ID Act,
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), and review de novo
questions of law, including frivolous application determinations, Liu v. Holder,
640 F.3d 918, 925 (9th Cir. 2011). We deny in part and grant in part the petition
for review, and we remand.
The BIA determined that, under the totality of circumstances, significant
omissions from Abdel Malek’s asylum application provided an adequate basis for
the IJ’s adverse credibility finding. Substantial evidence supports the agency’s
adverse credibility determination based on Abdel Malek’s omission of
mistreatment by Egyptian police, including beatings and the denial of insulin, from
his detailed asylum application. See Shrestha, 590 F.3d at 1048 (adverse
credibility determination reasonable under the “totality of circumstances”); see
also Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“Material alterations
in the applicant’s account of persecution are sufficient to support an adverse
credibility finding.”). The agency considered and properly rejected Abdel Malek’s
explanations for the omissions. See Zamanov, 649 F.3d at 974. Further, Abdel
2 12-74233
Malek’s corroborative evidence does not rehabilitate his testimony. See Garcia v.
Holder, 749 F.3d 785, 791 (9th Cir. 2014). In the absence of credible testimony,
Abdel Malek’s asylum and withholding of removal claims fail. See Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Substantial evidence also supports the agency’s denial of Abdel Malek’s
CAT claim because it was based on the same evidence found not credible and the
record does not otherwise compel the finding that it is more likely than not Abdel
Malek would be tortured by or with the consent or acquiescence of the government
if returned to Egypt. See Shrestha, 590 F.3d at 1048-49. We reject Abdel Malek’s
contention that the agency did not consider record evidence.
Finally, the record does not establish by a preponderance of the evidence
that Abdel Malek deliberately fabricated a material element of his asylum
application. See Liu, 640 F.3d at 930 (concluding that the particular
inconsistencies and omissions the agency relied on for its supported credibility
determination did not meet the heightened requirements for a frivolousness
finding). Thus, we grant the petition as to the frivolousness finding and remand
this case to the agency for further proceedings consistent with this disposition. See
INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
3 12-74233
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
4 12-74233