Ganesh Gautam v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 16 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GANESH GAUTAM, No. 18-71657
Petitioner, Agency No. A089-313-544
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 14, 2020**
San Francisco, California
Before: BADE and BUMATAY, Circuit Judges, and MÁRQUEZ,*** District
Judge.
Ganesh Gautam petitions for review of the Board of Immigration Appeals
(BIA) order dismissing his appeal from an Immigration Judge’s (IJ) denial of his
*
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 Rosemary Márquez, United States District Judge for
the District of Arizona, sitting by designation.
applications for asylum and withholding of removal. We review the agency’s
factual findings for substantial evidence. Garcia-Milian v. Holder, 755 F.3d 1026,
1031 (9th Cir. 2014). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the
petition for review.
1. Credibility determinations are based on the “totality of the
circumstances, and all relevant factors,” including “the consistency between the
applicant’s . . . written and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii)
(asylum); 8 U.S.C. § 1231(b)(3)(C) (withholding of removal). When evaluating
discrepancies between statements, “an omission may form the basis for an adverse
credibility finding.” Lai v. Holder, 773 F.3d 966, 971 (9th Cir. 2014).
Substantial evidence supports the determination that Gautam was not
credible as to his testimony about a March 2008 encounter with the Maoists.
Gautam testified that a gun was held to his head during that incident, but he
omitted any mention of a gun in connection with that incident in the declaration
supporting his asylum application. This was a material detail that changed the
nature of the encounter and was more favorable to his position. See Zamanov v.
Holder, 649 F.3d 969, 973-74 (9th Cir. 2011).
The only explanation Gautam provided for that omission was that he “didn’t
know” that he needed to include it. In contrast, Gautam’s declaration mentioned a
gun in connection with a February 2008 incident. Because these factors
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undermined Gautam’s credibility, substantial evidence supports the adverse
credibility determination and the BIA’s determination that Gautam failed to show
past persecution.
2. This court lacks jurisdiction to consider Gautam’s claim that the IJ
failed to undertake an individualized determination of his well-founded fear of
future persecution because Gautam did not exhaust that claim, and the BIA could
have remedied the alleged error. See Barron v. Ashcroft, 358 F.3d 674, 677-78
(9th Cir. 2004).
3. Additionally, substantial evidence supports the determination that
Gautam could safely and reasonably relocate within Nepal. See 8 C.F.R.
§§ 1208.13(b), 1208.16(b); see also Gonzalez-Hernandez v. Ashcroft, 336 F.3d
995, 999 (9th Cir. 2003).
Petitioner’s motion for judicial notice is denied.
PETITON DENIED.
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