Ahmed Al Dahri v. Jefferson Sessions

FILED NOT FOR PUBLICATION MAR 26 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AHMED N. AL DAHRI, No. 15-72069 Petitioner, Agency No. A075-319-304 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued & Submitted March 15, 2018 San Francisco, California Before: PAEZ and IKUTA, Circuit Judges, and ADELMAN,** District Judge. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Lynn S. Adelman, United States District Judge for the Eastern District of Wisconsin, sitting by designation. Ahmed Al Dahri petitions for review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal of the denial of asylum by an immigration judge (IJ). We have jurisdiction under 8 U.S.C. § 1252. At Al Dahri’s immigration proceedings, immigration officer Steven Pantos testified regarding his interview with Al Dahri, read his contemporaneous notes of that interview into the record, testified regarding his Assessment to Refer, and Al Dahri was able to cross examine him. Accordingly, Pantos’s notes had a “sufficient indicia of reliability,” and the IJ did not err in admitting them into evidence and relying on them. Singh v. Gonzales, 403 F.3d 1081, 1089 (9th Cir. 2005). The agency’s adverse credibility determination was supported by substantial evidence. The BIA and IJ identified multiple inconsistencies between Al Dahri’s asylum application and initial interview with Pantos (where he expressed fear of persecution from the ruling party in Yemen due to his leadership position in the Yemen Socialist Party) and his subsequent testimony at the immigration proceedings, where he minimized his role in the party. These substantially different accounts of the nature of his membership in the Yemen Socialist Party are material alterations in Al Dahri’s account of persecution that go to the heart of the 2 asylum claim, see Li v. Holder, 559 F.3d 1096, 1102 (9th Cir. 2009),1 and are “sufficient to support an adverse credibility finding,” Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011). In light of this adverse credibility determination, the agency’s conclusion that Al Dahri is statutorily ineligible for asylum because he “ordered, incited, assisted, or otherwise participated in the persecution of” political opponents, 8 U.S.C. § 1101(a)(42), is also supported by substantial evidence. In Matter of D-R-, 27 I. & N. Dec. 105 (BIA 2017), the BIA declined to apply the interpretation of “assisted, or otherwise participated” outlined in Miranda Alvarado v. Gonzales, 449 F.3d 915, 926–30 (9th Cir. 2006), and stated it would “instead, exercise our authority to provide guidance on the definition of the term” pursuant to Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), and National Cable & Telecommunications Ass’n v. Brand X Internet Services, 545 U.S. 967 (2005). Matter of D-R-, 27 I. & N. Dec. at 118–19. We need not determine whether Matter of D-R- supercedes ...

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