Dirga Gharti v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DIRGA BAHADUR GHARTI, No. 15-73290 Petitioner, Agency No. A205-408-873 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted March 13, 2018** San Francisco, California Before: WATFORD and FRIEDLAND, Circuit Judges, and FEINERMAN, District Judge.*** In removal proceedings, Petitioner Dirga Gharti sought asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”) based * 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 Gary Feinerman, United States District Judge for the Northern District of Illinois, sitting by designation. on his claimed fear of persecution and torture. The immigration judge (“IJ”) denied all three forms of relief primarily based on a finding that Gharti had not testified credibly. The Board of Immigration Appeals (“BIA”) affirmed the IJ’s adverse credibility determination and denial of relief. Gharti now petitions for review. We deny the petition. 1. “Under the REAL ID Act,” which applies to Gharti’s application, “there is no presumption that an applicant for relief is credible.” Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014). The IJ’s credibility determination is based on the “totality of the circumstances, and all relevant factors,” including the applicant’s “candor, or responsiveness,” the “consistency between the applicant’s . . . written and oral statements,” and “the consistency of such statements with other evidence of record.” 8 U.S.C. § 1158(b)(1)(B)(iii). “[A]ny inaccuracies, omissions of detail, or inconsistencies found by the IJ, regardless of whether they go to the ‘heart’ of a petitioner’s claim, may support an adverse credibility finding.” Tamang v. Holder, 598 F.3d 1083, 1093 (9th Cir. 2010). “We review factual findings, including adverse credibility determinations, for substantial evidence.” Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quoting Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014)). “Because credibility determinations are findings of fact by the IJ, they ‘are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Rizk 2 v. Holder, 629 F.3d 1083, 1087 (9th Cir. 2011) (quoting 8 U.S.C. § 1252(b)(4)(B)). The IJ’s adverse credibility determination in this case was based on several key points of vagueness or inconsistency in Gharti’s testimony on cross- examination during his merits hearing. Gharti claimed that he actively supported an anti-Maoist political party in Nepal and was threatened, robbed, and forced to work in a labor camp by Maoists because of his political opinion and activities. But the IJ provided a “legitimate articulable basis to question [Gharti’s] credibility,” id. at 1088 (quoting Hartooni v. I.N.S., 21 F.3d 336, 342 (9th Cir. 1994)), finding that his testimony on cross examination was confused and internally inconsistent, including with respect to ...

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