Mahesh Lakhani v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAHESH PARSRAM LAKHANI, No. 18-70838
Petitioner, Agency No. A098-957-745
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 9, 2020**
San Francisco, California
Before: MILLER and HUNSAKER, Circuit Judges, and SCHILTZ,*** District
Judge.
Mahesh Lakhani, a native and citizen of India, seeks review of a Board of
Immigration Appeals order dismissing his appeal from an immigration judge’s
*
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).
***
The Honorable Patrick J. Schiltz, United States District Judge for the
District of Minnesota, sitting by designation.
decision denying his application for asylum, withholding of removal, and
protection under the Convention Against Torture. We have jurisdiction under 8
U.S.C. § 1252(a)(1), and we deny the petition.
1. We lack jurisdiction to review the Board’s determination that the
immigration judge properly declined to consider Lakhani’s asylum application
because he filed it more than two years after arriving in the United States and did
not establish extraordinary circumstances justifying the untimely filing. We do not
“have jurisdiction to review any determination of the Attorney General” regarding
whether “extraordinary circumstances [exist] relating to the delay in filing an
application.” 8 U.S.C. § 1158(a)(2)(D), (a)(3); see id. § 1252(a)(2)(B)(ii).
Lakhani notes that we have jurisdiction to review questions of law, including
“application of law to undisputed facts.” Ramadan v. Gonzales, 479 F.3d 646, 648
(9th Cir. 2007) (per curiam). But we have no jurisdiction to resolve mixed
questions of law and fact when the underlying facts are disputed, see Gasparyan v.
Holder, 707 F.3d 1130, 1134 (9th Cir. 2013), and here, they are. Lakhani asserts
that his post-traumatic stress disorder (PTSD) and his reliance on incorrect legal
advice “prevented him from timely filing his application for asylum.” But the
Board rejected Lakhani’s argument based on PTSD, upholding the immigration
judge’s findings that Lakhani’s “claim[] that he suffered from [PTSD] . . . [was]
not credible,” and that his PTSD “did not impair or affect [his] cognitive abilities
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and/or functioning in other significant ways.” And although the Board did not
expressly address the claim of reliance on faulty legal advice, the facts relating to
that claim were disputed: Lakhani’s own testimony shows that the delay in filing
occurred because he “did not know anything about asylum,” and that he did not
seek the advice of an immigration attorney because he “didn’t have that kind of
money to spend.”
2. Nor did the Board violate Lakhani’s due process rights by declining to
address his application for asylum on the merits after we granted an earlier petition
for review and remanded to the Board. While the general scope of our remand
order permitted the Board to decide “anything not foreclosed by the [court’s]
mandate,” United States v. Kellington, 217 F.3d 1084, 1092 (9th Cir. 2000)
(citation omitted), the Board was not required to reconsider Lakhani’s asylum
claim. It was free to uphold its earlier determination that Lakhani’s application for
asylum was properly denied as untimely.
3. The Board denied withholding of removal after upholding the
immigration judge’s adverse-credibility finding on the basis of Lakhani’s
inconsistent and implausible testimony. Substantial evidence supports the Board’s
conclusion.
For example, Lakhani testified in 2009 that when he filed a police report
after being attacked by Hindu fundamentalists for being “married to a Christian
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woman,” Indian officers refused to investigate his case, telling Lakhani that he
“should have been beaten up more.” But when Lakhani testified in 2015, he did not
mention the officers’ discriminatory motives and instead testified that they turned
him away because he could not identify his attackers by name.
In addition, the agency found that Lakhani’s prioritization of business and
educational opportunities while in the United States—before inquiring about
asylum—undermined the plausibility of his allegations that he endured persecution
in India. See Loho v. Mukasey, 531 F.3d 1016, 1018–19 (9th Cir. 2008). That
Lakhani voluntarily returned to India before his initial visa expired further
undermined his allegations of persecution. Id. Lakhani testified that he returned to
India “[b]ecause [he] thought that . . . things might have died down” during the
three months he was in the United States. But we cannot say, considering the
totality of the circumstances, that “any reasonable adjudicator would be compelled
to conclude” that Lakhani’s allegations of past persecution or fear of future
persecution were credible. 8 U.S.C. § 1252(b)(4)(B); see id. § 1231(b)(3)(C).
Apart from his own testimony, Lakhani did not present any evidence
corroborating his allegations of persecution despite being afforded the “opportunity
to either provide that corroboration or explain why he cannot do so.” Ren v.
Holder, 648 F.3d 1079, 1091–92 (9th Cir. 2011); see 8 U.S.C. § 1231(b)(3)(C)
(incorporating the corroboration requirements of 8 U.S.C. § 1158(b)(1)(B)(ii)).
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Lakhani testified that he attempted to obtain letters from family members—as well
as police reports and hospital records—to corroborate his testimony. But despite
the passage of several years, each attempt proved unsuccessful, and Lakhani did
not adequately explain why.
4. Substantial evidence also supports the agency’s determination that
Lakhani did not establish that it is more likely than not that, if returned to India, he
will be tortured by or with the acquiescence of the Indian government. 8 C.F.R.
§§ 1208.16(c)(2)–(3), 1208.18(a)(1). Lakhani’s claim “is based on the same
statements he made regarding his claim[] for . . . withholding of removal,” Singh v.
Lynch, 802 F.3d 972, 977 (9th Cir. 2015), so the Board properly rejected it.
PETITION DENIED.
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