Manjit Major v. Eric Holder, Jr. , 585 F. App'x 922 ( 2014 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 23 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MANJIT KAUR MAJOR; VARINDER No. 10-73111
SINGH,
Agency Nos. A070-195-341
Petitioners, A071-614-138
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 9, 2014**
San Francisco, California
Before: REINHARDT, GOULD, and BERZON, Circuit Judges.
Manjit Kaur Major (“Major”) and her son Varinder Singh, natives and
citizens of India, petition for review of the Board of Immigration Appeals (“BIA”)
decision affirming an immigration judge’s (“IJ”) denial of their applications for
*
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).
adjustment of status, asylum, withholding of removal, protection under the
Convention Against Torture (“CAT”), and motion to remand. Major1 raises the
following issues on appeal: (1) whether the BIA erred in denying Major’s
adjustment of status applications based on her marriages to Mr. Jimmy Major
(“Mr. Major”) and Mr. Madanjit Nijjar (“Nijjar”); (2) whether substantial evidence
supports the BIA’s denial of Major’s asylum application; (3) whether substantial
evidence supports the BIA’s denial of Major’s CAT relief; and (4) whether the
BIA abused its discretion in denying Major’s motion to remand.
I
Major contends that the BIA erred in denying her adjustment of status
application based on her marriage to Mr. Major because Mr. Major’s death after
marriage did not deprive her of eligibility to adjust status, and because the DHS
misguided her in connection with the withdrawing of her application. We reject
this argument for several reasons. The BIA did not deny Major’s application
because Mr. Major died, but because Major withdrew her application and admitted
that her marriage was purely for the purpose of obtaining her legal permanent
residency. Also, Major’s argument that the DHS misguided her into withdrawing
1
We only address Major’s eligibility for relief, because Varinder Singh’s
relief solely derives from his mother Major’s applications.
2
her application was not raised before the IJ or in her opening brief before the BIA.
We do not have subject matter jurisdiction to consider a claim not properly raised
in administrative proceedings. Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th Cir.
2006).
Major is ineligible to adjust status based on her later marriage to Nijjar,
because INA § 245(d) bars her from adjusting status on any basis other than
marriage to the United States citizen who petitioned for her K-1 visa. Choin v.
Mukasey, 537 F.3d 1116, 1119 n.4 (9th Cir. 2008) (“There is no question that the
plain language of [INA § 245(d)] bars K visaholders from adjusting to permanent
resident status on any basis other than the marriage to the citizen who petitioned on
their behalf.”). The BIA did not err in denying Major’s adjustment of status
applications.
II
Major contends that the BIA’s “adverse credibility finding or [Major’s]
alleged incoherency is not supported by substantial evidence.” Where, as here, the
BIA has affirmed the IJ’s findings of fact and added comments of its own, we
review both decisions. Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.
2011). Normally, we review an adverse credibility finding for substantial
evidence. Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010). However, our
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precedent is clear that an adverse credibility determination must be explicit, not
implicit. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 658–59 (9th Cir. 2003)
(holding that the IJ must make explicit credibility findings); Shoafera v. INS, 228
F.3d 1070, 1074 n.3 (9th Cir. 2000) (“[T]he law of this circuit does not permit
implicit adverse credibility determinations.”); Aguilera-Cota v. INS, 914 F.2d
1375, 1383 (9th Cir. 1990) (“The mere statement that a petitioner is ‘not entirely
credible’ is not enough.”). Here, we do not read the IJ’s decision or the BIA’s
decision as making any explicit adverse credibility determination. As the BIA
stated:
The Immigration Judge noted the multiple significant discrepancies
and material inconsistencies in the record, between the testimony, the
applications, and the other documentary evidence. The Immigration
Judge determined that the asylum claims were incoherent, and he was
not sure what to believe, due to the significant discrepancies and
inconsistencies and the inability of the respondents to adequately
explain the discrepancies in the record. We affirm the Immigration
Judge’s decision.
Several aspects of in Major’s proof rendered her asylum claim incoherent.
First, Major’s membership of the Akali Dal party is a key to her asylum claim, but
her written application and testimony conflict on whether she was a member.
Major’s written application said that she “became a member of the party” on April
13, 1990, but contrary to that statement, she testified that she was not a member.
4
At the end of the hearing, the IJ gave Major adequate opportunities to explain this
inconsistency, but she was unable to do so.
Second, the theme of Major’s political persecution story shifted between her
written application and her testimony. Her written application stressed that she
was a member of the Akali Dal party and was persecuted because of her political
activities. But at the hearing, her story shifted to focus on Satwant Singh. Major’s
deceased first husband was Harjit Singh (“Singh”), and his brother-in-law was
Satwant Singh, who allegedly assassinated Prime Minister Indira Gandhi. The
name Satwant Singh did not appear in Major’s written application, but became the
focus of her persecution story at the asylum hearing. If Major’s arrest was because
of her family connection to Satwant Singh, it is incomprehensible why she did not
even mention Satwant’s name in her written application. Major’s new story about
Satwant Singh also was incoherent, as the IJ found. Major stated that Singh went
out for gatherings with Satwant in 1990, but on cross-examination, the DHS’s
counsel asked how Satwant could go out with Singh in 1990 if Satwant was
hanged before 1990. Major then changed her testimony stating that others from
the party used to go by Satwant’s name. But Major had confirmed earlier that the
Satwant Singh whom Singh went out with was the Satwant Singh who killed Prime
Minister Gandhi.
5
Third, Major and her deceased husband Singh’s father Avtar Singh were
unable affirmatively to testify whether it was militants or the police who killed
Singh. In sum, substantial evidence supports the BIA’s determination that Major’s
asylum claims were incoherent.
III
The government argues that Major did not exhaust her CAT claim because
Major “merely asserted in the first paragraph” of her brief before the BIA that she
appeals the IJ’s denial of her CAT relief. We have previously held that a CAT
claim is exhausted as long as a petitioner mentions his or her CAT claim in the
brief, because the BIA is on notice that the petitioner is challenging the IJ’s CAT
determination. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Zhang v.
Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004). Here, Major mentioned in her brief
that she was challenging the IJ’s denial of her asylum under CAT, so Major has
exhausted her CAT claim.
The government also argues that Major waived her CAT challenge on appeal
before us because she did not make any arguments that she met the burden of proof
in her opening brief. Although Major’s arguments in support of her CAT claim
were sparse, she did argue that she was eligible for CAT relief in her opening brief.
We conclude that Major did not waive her CAT claim.
6
We turn to the merits of Major’s CAT claim. To be eligible for withholding
of removal under CAT, an applicant must prove that “he [or she] is more likely
than not to suffer intentionally-inflicted cruel and inhuman treatment” in the
country of removal. Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005)
(citation omitted). CAT claims are “analytically separate from claims for asylum
under INA.” Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). In
determining an immigrant’s eligibility for CAT relief, the BIA shall consider “all
evidence relevant to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3).
Here, the BIA was silent as to its reason for denying Major’s CAT relief.
When the BIA is silent as to its reason for denying a CAT claim, we look to the
IJ’s opinion “as a guide to what lay behind the BIA’s conclusion.” Afriyie v.
Holder, 613 F.3d 924, 937 (9th Cir. 2010) (internal quotation marks and citation
omitted). Here, the IJ denied Major’s CAT claim for the same reason that he
denied her asylum and withholding of removal claims: numerous significant
discrepancies between Major’s application, testimony, and the documentary
evidence rendered her claim incoherent. Moreover, although the evidence relating
to Major’s asylum and CAT claims substantially overlap, the IJ did consider
evidence specifically relating to Major’s CAT claim, including India’s country
conditions that the IJ referred to as “general background materials the purpose of
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which is to provide context for Ms. Kaur’s claims.” Cf. Kamalthas, 251 F.3d at
1284 (granting petition for review because the BIA failed to consider relevant
country conditions). We are unable to find that this evidence “compel[s] a
different conclusion from the one reached by the BIA.” Zheng v. Holder, 644 F.3d
829, 835 (9th Cir. 2011). Because the IJ has considered all relevant evidence
relating to Major’s CAT claim, and because nothing in the record compels us to
reverse the IJ’s denial of Major’s CAT relief, we deny the petition with respect to
this claim.
IV
Major finally contends that the BIA erred in denying her motion to admit
new evidence. Major’s motion for the IJ to consider new evidence is a motion to
reopen. Oyeniran v. Holder, 672 F.3d 800, 808 (9th Cir. 2012). A motion to
reopen filed while an alien’s removal proceeding is on appeal before the BIA will
be treated as a motion to remand the proceedings to the IJ. 8. C.F.R.
§§ 1003.2(b)(1) and (c)(4); Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir.
2005). We review the BIA’s denial of a motion to remand for abuse of discretion.
Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).
Here, the BIA did not abuse its discretion in denying Major’s motion to
remand because she did not show that the previously unavailable evidence could
8
not have been discovered or presented at the former hearing. INS v. Doherty, 502
U.S. 314, 324 (1992); see also Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.
2010). All events described in the new evidence took place before Major’s asylum
hearing on December 11, 2008, and Major gave no explanation of why she could
not have submitted the new evidence before her asylum hearing. The BIA has
broad discretion in denying remand motions. INS v. Abudu, 485 U.S. 94, 108
(1988). We conclude that the BIA did not abuse its discretion in denying Major’s
motion to remand.
PETITION DENIED.
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