Shakti Rai v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 21 2017 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT SHAKTI MAHAPITA RAI, No. 15-71041 Petitioner, Agency No. A089-703-119 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted November 16, 2017** San Francisco, California Before: CLIFTON and FRIEDLAND, Circuit Judges, and GLEASON,*** District Judge. Shakti Rai, a native and citizen of Nepal, petitions for review of an order by * 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 Sharon L. Gleason, United States District Judge for the District of Alaska, sitting by designation. the Board of Immigration Appeals (“BIA”) adopting and affirming an immigration judge’s (“IJ”) denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”).1 We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition. 1. We review adverse credibility findings for substantial evidence and can grant review only if “any reasonable adjudicator would be compelled to conclude” that the petitioner was credible. Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014) (citing 8 U.S.C. § 1252 (b)(4)(B)). Substantial evidence supports the IJ’s and the BIA’s conclusion that Rai’s testimony was not credible. In particular, the IJ questioned both “the extent of [Rai’s] fear and . . . whether the incidents which he said caused the fear actually happened” because Rai returned to Nepal two times after these incidents allegedly took place. See Loho v. Mukasey, 531 F.3d 1016, 1018-19 (9th Cir. 2009) (holding that voluntary returns to one’s home country can support an adverse credibility finding). Moreover, the IJ and BIA also considered the fact that Rai “fail[ed] to inquire about ways to remain in the United States on one of his prior stops in this country.” Rai’s explanations for why he returned do not compel a finding to the contrary. And there is no evidence to suggest that Rai was “coerced into returning.” Id. at 1018. Therefore, his appeal 1 Rai has petitioned only for review of his applications for asylum and withholding of removal. We therefore treat his CAT claim as waived. 2 to Ding v. Ashcroft is unpersuasive. See 387 F.3d 1131, 1139-40 (9th Cir. 2004) (reversing an adverse credibility finding in part because the IJ improperly relied on evidence that the alien returned to her home country while under the control of others who held her travel documents). 2. “We review . . . [a] determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential ‘substantial evidence’ standard.” Zetino v. Holder, 622 F.3d 1007, 1012 (9th Cir. 2010) (citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). To be eligible for asylum, an ...

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