Ekbahadur Gurung v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
JUN 11 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EKBAHADUR GURUNG, No. 18-70589
Petitioner, Agency No. A205-847-939
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**
Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.
Ekbahadur Gurung (“Gurung”) petitions for review of the Board of
Immigration Appeals’ (“BIA”) decision affirming the immigration judge’s (“IJ”)
denial of asylum, withholding of removal and protection under the Convention
Against Torture (“CAT”). 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 agency’s conclusion that Gurung’s testimony
was not credible. Gurung’s testimony before the IJ regarding a physical attack that
occurred in 2007 was inconsistent with his testimony to the asylum officer during his
credible fear interview that he fled Nepal in 2005 and had no further contact with the
Maoists after that time. Although Gurung contends the BIA erred by relying on the
asylum interview for impeachment, the BIA did not err in concluding that the
evidence was sufficiently reliable because Gurung was under oath; a sworn translator
was present; and the asylum officer took detailed, contemporaneous notes. See Singh
v. Gonzales, 403 F.3d 1081, 1087–90 (9th Cir. 2005); Li v. Ashcroft, 378 F.3d 959,
963 (9th Cir. 2004).
Gurung also testified that his wife still remained in Nepal and had been attacked
by Maoists in October 2015, which contributed to his fear to return. However, his
own expert psychiatric witness volunteered that Gurung’s wife had accompanied
Gurung to his first appointment in April 2016, provided the correct name for Gurung’s
wife, and testified that she had identified herself as Gurung’s wife. In light of this
testimony, the IJ was not required to credit Gurung’s explanation that the witness must
have been mistaken or had confused his wife with another woman. Both of these
inconsistencies identified by the IJ and relied on by the BIA are significant parts of
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Gurung’s asylum claim and sufficiently support the adverse credibility finding. See
Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010).
Without credible testimony, Gurung has not established his eligibility for
asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003). With respect to Gurung’s CAT claim, the record does not compel the
conclusion that Gurung would more likely than not be subjected to torture by or with
the acquiescence of the government. Garcia-Milian v. Holder, 755 F.3d 1026, 1033
(9th Cir. 2014).
PETITION DENIED.
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