NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 14 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BISHNU MAYA GURUNG, No. 20-71535 Petitioner, Agency No. A096-874-486 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 4, 2021** Seattle, Washington Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,*** District Judge. Bishnu Maya Gurung, a native and citizen of Nepal, seeks review of a * 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 Paul L. Friedman, United States District Judge for the District of Columbia, sitting by designation. decision of the Board of Immigration Appeals (BIA) dismissing her appeal from an Immigration Judge’s (IJ) order denying her applications for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition. We review the agency’s legal determinations de novo and factual findings for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). We will uphold the agency’s decision if it is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Tampubolon v. Holder, 610 F.3d 1056, 1059 (9th Cir. 2010). When making credibility determinations, IJs are accorded “substantial deference” because they “are in the best position to assess demeanor and other credibility cues that we cannot readily access on review.” Shrestha v. Holder, 590 F.3d 1034, 1041–42 (9th Cir. 2010). “[O]nly the most extraordinary circumstances will justify overturning an adverse credibility determination.” Id. at 1041. 1. IJs must “provide ‘specific and cogent reasons’ in support of an adverse credibility determination.” Id. at 1043 (citation omitted). “When an inconsistency is cited as a factor supporting an adverse credibility determination, that inconsistency should not be a mere trivial error such as a misspelling . . . .” Id. at 1044. Here, the IJ identified three specific and cogent reasons to support the adverse credibility determination: (1) petitioner unreasonably failed to testify 2 concerning a serious incident of harm that she had included in her declaration; (2) petitioner implausibly testified that although she was extremely politically active in Nepal, she was not politically active at all in the United States; and (3) while testifying, petitioner frequently failed to directly respond to questions and tended to give evasive and nonresponsive answers. First, the inconsistency identified by the IJ was not trivial. See Kaur v. Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005) (collecting examples of “non-material, trivial” inconsistencies). The incident that petitioner excluded from her testimony significantly corroborates her testimony about other incidents of harm, and petitioner included it in her declaration. The fact that petitioner’s omission weakened her claim does not preclude the IJ from considering it in …
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