FILED NOT FOR PUBLICATION FEB 22 2019 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT OMKAR SHRESTHA, No. 17-70096 Petitioner, Agency No. A206-361-030 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 15, 2019** San Francisco, California Before: McKEOWN and W. FLETCHER, Circuit Judges, and EZRA,*** District Judge. Omkar Shrestha, a native and citizen of Nepal, petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of his application for asylum, * 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 David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. withholding of removal, and relief under the Convention Against Torture (“CAT”). Shrestha claimed he was eligible for relief because he had been physically attacked by Maoists due to his membership in the Nepali Congress Party. “Where, as here, the BIA agrees with and incorporates specific findings of the [Immigration Judge (“IJ”)] while adding its own reasoning, we review both decisions.” Bhattarai v. Lynch, 835 F.3d 1037, 1042 (9th Cir. 2016). We have jurisdiction under 8 U.S.C. § 1252 and we affirm. Asylum and Withholding of Removal An applicant for asylum and withholding of removal bears the burden of establishing eligibility. 8 U.S.C. §§ 1158(b)(1)(B)(I), 1229a(c)(4)(A). “The testimony of the applicant may be sufficient to sustain the applicant’s burden without corroboration, but only if the applicant satisfies the trier of fact that the applicant’s testimony is credible . . . .” 8 U.S.C. § 1158(b)(1)(B)(ii). The REAL ID Act, which governs claims filed after May 11, 2005, provides the standard for determining an applicant’s credibility, including a list of relevant factors. 8 U.S.C. § 1158(b)(1)(B)(iii); Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010). “For each factor forming the basis of an adverse credibility determination, the IJ should refer to specific instances in the record that support a conclusion that the factor undermines credibility.” Shrestha, 590 F.3d at 1044. 2 The BIA here upheld the IJ’s adverse credibility determination. An adverse credibility determination is reviewed for substantial evidence. See Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). “Under the substantial evidence standard, the court upholds the BIA’s determination unless the evidence in the record compels a contrary conclusion.” Cole v. Holder, 659 F.3d 762, 770 (9th Cir. 2011) (quoting Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007)). The evidence in the record does not compel a positive credibility determination. The IJ permissibly relied on inconsistencies between Shrestha’s credible fear interview—which was conducted under oath through an interpreter and the admission of which Shrestha did not challenge—and his hearing testimony, as well as the omission of the alleged attack on Shrestha from his father’s ...
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