Asghar v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 5 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MUDASAR ASGHAR, No. 21-1290
Agency No.
Petitioner, A203-681-527
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 21, 2023
Pasadena, California
Before: WARDLAW and KOH, Circuit Judges, and McMAHON, District
Judge.**
Mudasar Asghar, a native and citizen of Pakistan, appeals from a Board
of Immigration Appeals (BIA) decision affirming an Immigration Judge’s (IJ’s)
denial of asylum, withholding of removal, and protection under the Convention
Against Torture (CAT). As the parties are familiar with the facts, we do not
restate them here. We have jurisdiction under 8 U.S.C. § 1252. We deny the
*
This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Colleen McMahon, United States District Judge for
the Southern District of New York, sitting by designation.
petition.
1. “Taking the totality of the circumstances into account,” substantial
evidence supports the agency’s adverse credibility determination. Kumar v.
Garland, 18 F.4th 1148, 1153 (9th Cir. 2021). The agency’s determination
turns on implausible statements made at Asghar’s merits hearing and critical
inconsistencies pertaining to his protection claim. For example, Asghar claimed
he was unaware that he could obtain a visa to travel to the United States or enter
the country at a land-based port of entry. However, the petitioner has an
extended history of travel to multiple countries, including a months-long stay in
Russia, and has obtained visas to travel to such countries. The agency properly
deemed this statement, and others regarding Asghar’s ability to report his
assault to police, implausible.
The agency also identified multiple inconsistencies between statements
made at Asghar’s credible fear interview and at his merits hearing. These
inconsistencies, regarding Asghar’s reasons for leaving Pakistan, his prolonged
stay in Russia, and his possible conversion to Shia Islam, are relevant to his
protection claim and were not explained in his testimony, and though Asghar
offered explanations for these inconsistencies at the hearing, the agency
“reasonably reject[ed]” them or properly deemed them implausible.
Barseghyan v. Garland, 39 F.4th 1138, 1143 (9th Cir. 2022). For example, at
his credible fear interview, Asghar claimed that he never considered leaving
Pakistan before he was assaulted in June 2019. Yet at his merits hearing,
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Asghar admitted to meeting in May with his travel agent, who “explain[ed] the
possibility” of Asghar departing Pakistan for the United States.” This
inconsistency relates directly to Asghar’s motivation for fleeing Pakistan and
Asghar failed to adequately explain it in the hearing.
Similarly, Asghar provided contradictory testimony about whether he
converted to Shia Islam before leaving Pakistan. At his credible fear interview,
Asghar stated that both he and his wife, Fatima Nadeem, were persecuted for
“changing our sect from Sunni and Shia to Ahle-Tashi,” the latter of which is
synonymous with Shia Islam. Yet, at his merits hearing, Asghar confirmed that
he “did not become Shiite,” though neighbors may have suspected that he
converted. The agency properly relied on these and other inconsistencies in
making its adverse credibility determination.
Finally, the agency’s demeanor finding “specifically and cogently”
referenced hearing testimony in which the petitioner appeared to grow agitated
and combative. Arulampalam v. Ashcroft, 353 F.3d 679, 685 (9th Cir. 2003).
The agency noted Asghar’s “audibly agitated demeanor” when responding to
questioning by government counsel. The trial transcript reflects multiple
confrontations between Asghar and government counsel during cross
examination that support the agency’s conclusion. For example, responding to
the government attorney’s presentation of social media posts suggesting that
Asghar may have made misleading statements about his visits to Russia, Asghar
appears to grow increasingly frustrated.
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Under the “extremely deferential” substantial evidence standard, Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003), we are not “compelled to
conclude” that the agency erred in its adverse credibility determination.
8 U.S.C. § 1252(b)(4)(B).
2. Asghar was not prejudiced by incompetent translation at his merits
hearing in violation of his due process rights. While “[i]t is long-settled that a
competent translation is fundamental to a full and fair hearing,” Perez-Lastor v.
INS., 208 F.3d 773, 778 (9th Cir. 2000), to establish a due process violation
based on incompetent translation, a petitioner must (1) provide evidence of
mistranslation and (2) establish prejudice by demonstrating “that a better
translation would have made a difference in the outcome of the hearing.”
Acewicz v. INS., 984 F.2d 1056, 1063 (9th Cir. 1993) (citing Tejeda-Mata v.
INS, 626 F.2d 721, 727 (9th Cir. 1980)).
3. Here, the trial transcript contains some evidence of mistranslation,
including “direct evidence of incorrectly translated words, unresponsive
answers by the witness, and the witness’ [sic] expression of difficulty
understanding what is said to him.” Siong v. INS., 376 F.3d 1030, 1041 (9th
Cir. 2004). However, most of these errors were corrected through further
questioning or requests for clarification. See Kotasz v. INS., 31 F.3d 847, 850
n.2 (9th Cir. 1994) (stating that translation errors may be “rectified” through
“[c]larification or repetition” at a petitioner’s hearing).
Ultimately, Asghar was not prejudiced by instances of incompetent
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translation that remained unclarified. “When the BIA bases its denial of an
asylum claim on an adverse credibility finding, as it did here, evidence that the
translation caused the BIA to disbelieve the petitioner’s testimony is sufficient
to show prejudice.” Perez-Lastor, 208 F.3d at 780 n.8. Here, the unclarified
translation errors were relatively minor and did not outweigh the substantial
evidence supporting the agency’s adverse credibility finding. As such, Asghar
has not provided sufficient evidence that translation errors caused the agency to
disbelieve his testimony, in light of voluminous, properly translated testimony
supporting the agency’s adverse credibility determination.
4. Substantial evidence supports the agency’s conclusion that Asghar
failed to carry his burden of proof, independent of his testimony, on his asylum,
withholding, and CAT claims. See Plancarte Sauceda v. Garland, 23 F.4th
824, 831 (9th Cir. 2022) (“[F]actual findings underlying the BIA’s
determination that a petitioner is not eligible for asylum, withholding of
removal, or CAT relief” are reviewed for “substantial evidence.”). The agency
properly observed that the country conditions evidence in this case is mixed,
and Asghar offers no further evidence in support of his protection claims.
Asghar instead argues that the agency’s cursory treatment of such evidence
warrants remand, analogizing his case to Davila v. Barr, 968 F.3d 1136 (9th
Cir. 2020), in which we remanded to the BIA based on its “selective[]” citation
to country conditions evidence. Id. at 1143.
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But here, the agency properly reviewed equivocal country conditions
evidence in the record. While the country conditions reports suggest that Shia
Muslims are targeted by the government and certain sectarian groups, the same
reports note that the Pakistani government has attempted to tamp down such
violence. Thus, substantial evidence supports the agency’s conclusion that “the
same evidence demonstrates that the Pakistani government protects Shias and
inter-sectarian couples from harm, and actively combats sectarian violence and
discrimination towards such groups.”
Asghar offers no other arguments to contest the agency’s denial of
asylum, withholding, and CAT protection. Accordingly, the agency’s denial of
relief was proper.
PETITION DENIED.
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