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DHINDSA v. GARLAND (2021)

United States Court of Appeals, Ninth Circuit.2021-04-14No. No. 17-70153

Summary

Holding. The petition for review is denied in part and dismissed in part.

Avtar Singh Dhindsa, an Indian citizen, challenged the Board of Immigration Appeals' dismissal of his asylum, withholding of removal, and Convention Against Torture claims. The court found substantial evidence supported an adverse credibility determination based on inconsistencies in Dhindsa's statements about his entry into the United States, departure from India, and travel route. His explanations for these inconsistencies were insufficient to overturn the agency's findings, and supporting affidavits received limited weight because their authors were unavailable for cross-examination and their credibility depended on Dhindsa's discredited testimony.

Without credible testimony, Dhindsa's asylum and withholding of removal applications could not succeed. His Convention Against Torture claim likewise failed because it relied on the same testimony found not credible, and he presented no other evidence suggesting he would more likely than not face torture by or with the government's consent if returned to India. The court also lacked jurisdiction to review an argument about country conditions that was not presented to the immigration agency. A temporary stay of removal remained in effect pending the court's final order.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether substantial evidence supports an adverse credibility determination based on inconsistencies in asylum application materials
  • Whether corroborating affidavits can rehabilitate a discredited applicant's testimony
  • Whether country conditions evidence independently establishes a well-founded fear of persecution when not presented to the agency
  • Whether testimony supporting a Convention Against Torture claim was sufficiently credible

Procedural posture

Dhindsa petitioned for review of the Board of Immigration Appeals' dismissal of his appeal from an immigration judge's denial of asylum, withholding of removal, and Convention Against Torture relief.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM ***

Avtar Singh Dhindsa, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judges (“IJ”) decision denying his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agencys factual findings, applying the standards governing adverse credibility determinations under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny in part and dismiss in part the petition for review.

Substantial evidence supports the agencys adverse credibility determination based on inconsistencies between Dhindsas asylum application, supplementary statement, and testimony concerning his date of entry into the United States; his departure from India; and his journey to the United States. See id. at 1048 (holding that in the totality of circumstances, substantial evidence supported the agencys adverse credibility determination). Dhindsas explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). We reject as unsupported by the record Dhindsas contentions that the agency failed to consider his explanations or otherwise erred in its credibility analysis.

The agency did not err in assigning limited weight to the corroborating affidavits Dhindsa submitted. See Garcia v. Holder, 749 F.3d 785, 791 (9th Cir. 2014) (concluding that agency reasonably assigned corroborating documents limited weight, where the authors were not available for cross examination and the authenticity of the documents relied on the applicants discredited testimony). Substantial evidence supports the agencys determination that the affidavits were insufficient to independently establish eligibility for asylum or withholding of removal. See id. (holding that documentary evidence was insufficient to rehabilitate credibility or independently support claim, where the “documents do not reveal any independent knowledge of [the applicants] alleged abuse”).

To the extent Dhindsa argues that the country conditions evidence independently establishes a well-founded fear of persecution, we lack jurisdiction to consider the argument. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (holding that this court lacks jurisdiction to review claims not presented to the agency).

Thus, in the absence of credible testimony, in this case, Dhindsas asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Substantial evidence supports the agencys denial of Dhindsas CAT claim because it was based on the same testimony found not credible, and Dhindsa does not point to any other evidence in the record that compels the conclusion that it is more likely than not he would be tortured by or with the consent or acquiescence of the government if returned to India. See Shrestha, 590 F.3d at 1048-49; see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam) (stating that generalized evidence of violence and crime was not particular to the petitioner and insufficient to establish eligibility for CAT relief).

As stated in the courts March 7, 2017 order, the temporary stay of removal remains in place until issuance of the mandate.

PETITION FOR REVIEW DENIED in part; DISMISSED, in part.