NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 10 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NABARAJ KHATRI, No. 19-72271 Petitioner, Agency No. A206-986-668 v. MEMORANDUM* ROBERT M. WILKINSON, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 8, 2021** San Francisco, California Before: HURWITZ and BRESS, Circuit Judges, and CORKER,*** District Judge. Nabaraj Khatri, a citizen of Nepal, petitions for review of a decision of the Board of Immigration Appeals (“BIA”) dismissing his appeal from an order of an * 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 Clifton L. Corker, United States District Judge for the Eastern District of Tennessee, sitting by designation. Immigration Judge (“IJ”) denying his application for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny the petition in part and dismiss it in part. 1. We review the IJ’s adverse credibility determination for substantial evidence. Mukulumbutu v. Barr, 977 F.3d 924, 925 (9th Cir. 2020).1 A credibility determination must be based on the “totality of the circumstances, and all relevant factors.” 8 U.S.C. § 1158(b)(1)(B)(iii). The IJ must give “specific and cogent reasons” for a non-credibility finding and should “refer to specific instances in the record that support a conclusion that the factor undermines credibility.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (cleaned up). We consider “the reasons explicitly identified by the BIA,” and “the reasoning articulated in the IJ’s decision in support of those reasons.” Mukulumbutu, 977 F.3d at 925 (cleaned up). Substantial evidence in the record supports each reason the BIA cited in affirming the adverse credibility determination. First, Khatri’s testimony on harm allegedly suffered due to his political opinion was inconsistent with his declaration as to the number of instances in which he claimed he was harmed and the extent of 1 Although Khatri recognized in his opening brief that our review is for substantial evidence, he argued for the first time in his reply that a different standard of review applies. We decline to address that argument. See Martinez–Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996) (issues not raised and argued in an opening brief are forfeited). 2 the harm he allegedly suffered. 8 U.S.C. § 1158(b)(1)(B)(iii) (“consistency” is a relevant factor). This inconsistency, which goes to Khatri’s claim of persecution, is not “trivial.” See Shrestha, 590 F.3d at 1043. Second, Khatri’s hearing testimony on his work for the Nepali Congress Party was inconsistent with his declaration and insufficiently detailed. See id. at 1040 (“lack of detail” is a relevant factor). In his hearing testimony, Khatri gave only general descriptions of his involvement with the Party, despite being repeatedly ...
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