Fnu Haq v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
MAY 4 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FNU NAJIBUL HAQ, AKA Najibul Haq No. 16-73067
Siddiqi,
Agency No. A206-032-960
Petitioner,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 14, 2020**
Pasadena, California
Before: THOMAS, Chief Judge, and FERNANDEZ and W. FLETCHER, Circuit
Judges.
*
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).
Petitioner Najibul Haq Siddiqi,1 a native and citizen of Afghanistan,
petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his
appeal from the Immigration Judge’s (“IJ”) denial of his application for asylum,2
withholding of removal,3 and Convention Against Torture (“CAT”)4 relief. We
deny the petition.
The BIA’s determination that an alien is “not eligible for asylum must be
upheld if ‘supported by reasonable, substantial, and probative evidence on the
record.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L.
Ed. 2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4) (1992)). “It can be reversed
only if the evidence presented . . . was such that a reasonable factfinder would have
to conclude that the requisite fear of persecution existed.” Id.; see also Lianhua
Jiang v. Holder, 754 F.3d 733, 738 (9th Cir. 2014). The same standard applies to
1
Petitioner’s visa was issued, and his notice to appear was served, under the
name FNU (First Name Unknown) Haq. However, he testified that his last name is
Siddiqi and filed his asylum application under that name. We therefore refer to
him as such.
2
8 U.S.C. § 1158(a)(1).
3
8 U.S.C. § 1231(b)(3)(A).
4
United Nations Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No.
100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18.
2
adverse credibility determinations. See Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010).
We have reviewed the record and are satisfied that the BIA’s determination
was supported by substantial evidence. The IJ’s adverse credibility determination
was based in part on Siddiqi’s demeanor during cross-examination, and the IJ
identified particular instances of evasiveness supporting the adverse credibility
determination. See id. at 1041–42. As to the inconsistencies in Siddiqi’s
testimony regarding the Taliban’s persecution of him and his furtive crossing into
Canada, Siddiqi has waived any challenges to those issues as proper grounds for
the adverse credibility determination by not arguing them in his opening brief. See
Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996).
Moreover, on this record, Siddiqi has failed to establish a clear probability of
persecution, as required for his withholding of removal claim. See Garcia v.
Holder, 749 F.3d 785, 791 (9th Cir. 2014); see also Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003). Additionally, the evidence in the record does not
compel a determination that it is more likely than not Siddiqi would be tortured in
Afghanistan. Thus, he is not entitled to CAT relief. Lianhua Jiang, 754 F.3d at
740–41; see also Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015); Farah, 348
F.3d at 1156–57.
3
Siddiqi’s due process claim based on the BIA’s denial of his request for a
third extension of time to file his respondent’s brief also fails. Even assuming that
the extension should have been given, he has failed to show prejudice from the
denial. See Zetino v. Holder, 622 F.3d 1007, 1013–14 (9th Cir. 2010). After
denying the request, the BIA accepted and considered Siddiqi’s respondent’s brief
even though it was filed fifty-six days late.
Finally, we deny Siddiqi’s motion to remand; it should have been submitted
to the BIA and is untimely. Singh v. Holder, 658 F.3d 879, 883–84, 884 nn. 4–5
(9th Cir. 2011).
Petition DENIED.
4