Amit Kumar v. Loretta E. Lynch , 637 F. App'x 312 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 11 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMIT KUMAR, No. 13-72258
Petitioner, Agency No. A089-318-644
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 9, 2016**
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Amit Kumar, a native and citizen of India, petitions for review of a decision
by the Board of Immigration Appeals (BIA) affirming the Immigration Judge’s (IJ)
denial of his applications for asylum, withholding of removal, and protection under
*
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).
the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
§ 1252(a)(1), and we deny the petition for review.
1. The IJ’s adverse credibility determination, which was affirmed by the
BIA, is supported by substantial evidence. Both the IJ and the BIA reasonably
considered that Kumar’s asylum claim inconsistently changed over time from
religious persecution to political persecution. See Valderrama v. I.N.S., 260 F.3d
1083, 1085 (9th Cir. 2001) (per curiam) (substantial evidence supported BIA’s
adverse credibility finding when material differences existed in petitioner’s first
two asylum applications); de Leon-Barrios v. I.N.S., 116 F.3d 391, 393 (9th Cir.
1997) (similar). In addition, the IJ and BIA noted that the timing of Kumar’s
arrests undermined his political opinion claim. See Mahli v. I.N.S., 336 F.3d 989,
993 (9th Cir. 2003) (discrepancies in “critical” parts of petitioner’s story
substantially supported adverse credibility finding). Specifically, Kumar testified
that charges were filed against him in 2005 in retaliation for his lack of support in a
2007 election.
We also give deference to the IJ’s finding that Kumar’s testimony was
confusing, contradictory, and vague in regards to the circumstances surrounding
his political opinion claim. See Shrestha v. Holder, 590 F.3d 1034, 1041 (9th Cir.
2010) (“The deference that the REAL ID Act requires makes sense because IJs are
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in the best position to assess demeanor and other credibility cues that we cannot
readily access on review.”). Kumar testified inconsistently about his involvement
in the Congress Party, and stated that “it just didn’t strike [him]” to mention
anything in his asylum applications about his political party or the election that led
to his alleged persecution. See Kin v. Holder, 595 F.3d 1050, 1056–57 (9th Cir.
2010) (substantial evidence supported adverse credibility determination where
petitioners omitted a political demonstration from asylum application); see also
Husyev v. Mukasey, 528 F.3d 1172, 1182–83 (9th Cir. 2008) (holding that
omission of political activism was not a “mere . . . detail[]” when it went to the
heart of petitioner’s claim) (alterations in original) (quoting Singh v. Gonzales, 403
F.3d 1081, 1085 (9th Cir. 2005)). Finally, the corroborating evidence that Kumar
submitted further undermines his credibility. To illustrate, the documents Kumar
submitted surrounding his Indian arrests do not spell his name correctly, and the
affidavits submitted by his family members make absolutely no mention of
political forces at work.
On the totality of this record, we cannot conclude that Kumar’s statements
and testimony compel the conclusion that he was credible. In the absence of
credible testimony, the agency properly denied Kumar’s asylum and withholding
of removal claims. See Jin v. Holder, 748 F.3d 959, 967 (9th Cir. 2014).
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2. Substantial evidence supports the agency’s determination that Kumar
failed to establish that he was subject to government-sponsored persecution or that
it would be unreasonable for him to relocate within India to avoid future harm. See
Kaiser v. Ashcroft, 390 F.3d 653, 659 (9th Cir. 2004) (“Where, as here, the
applicant has not established past persecution, the applicant bears the burden of
establishing that it would be either unsafe or unreasonable for him to relocate,
unless the persecution is by a government or is government-sponsored.”).
3. The record does not compel the conclusion that “it is more likely than
not” Kumar will be tortured if he returns to India. See Bromfield v. Mukasey, 543
F.3d 1071, 1079 (9th Cir. 2008) (“[Petitioner] is entitled to relief under CAT if he
establishes that he would more likely than not be tortured in [his home country].”).
The Petition for Review is DENIED.
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