United States v. 2007-01-16 | 05-72761 | KOHLI VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 SHWETA KOHLI,
Petitioner, No. 05-72761
v. Agency No.
 A79-610-568ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 8, 2006*
San Francisco, California
Filed January 17, 2007
Before: Thomas G. Nelson, Ronald M. Gould, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Callahan
*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
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COUNSEL
Alan M. Kaufman of San Francisco, California, for petitioner
Shweta Kohli.
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Peter D. Keisler, Assistant Attorney General, John C. Cun-
ningham, and Gregg M. Schwind of Washington, D.C., for
respondent Alberto R. Gonzales, Attorney General.
OPINION
CALLAHAN, Circuit Judge:
Shweta Kohli, a native of Kuwait and a citizen of India,
seeks relief from removal arguing that the proceedings before
the Immigration Court should have been terminated because
the name and title of the issuing officer were not legible on
the Notice to Appear (“NTA”). She also contends that she is
entitled to withholding of removal and to relief under the
Convention Against Torture (“CAT”). We determine that the
alleged defect in the Notice to Appear is not jurisdictional.
We also conclude that the Immigration Judge’s adverse credi-
bility determination is supported by substantial evidence and
that Kohli has not shown that she is entitled to either with-
holding of removal or relief under the CAT.
I. Background
Kohli was born in Kuwait on October 13, 1980, of Indian
parents and is a citizen of India. Her parents were contract
workers in Kuwait and in 1990, during the Gulf War, the fam-
ily moved back to India. In 1992, her parents returned to
Kuwait, but Kohli remained in India with her grandmother to
finish her schooling.
Kohli testified that in 1996 while in school she became a
member of a human rights association which was interested
in human rights and particularly opposed the practices of sati1
1The New Oxford American Dictionary 1712 (2003) defines sati as “the
former Hindu practice of a widow immolating herself on her husband’s
funeral pyre.”
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and dowry. Kohli attended meetings and made fliers. About
five months after she joined the association, she attended a
small rally of eight to ten people. The police came and told
them to stop and took down their school identification num-
bers, names and addresses. Kohli and her associates then dis-
persed.
A month and a half later Kohli attended a bigger rally near
a supermarket with about fifteen members of the association.
They handed out flyers to about ten women. Again the police
came and told them to stop. Their leader said that they were
not doing anything wrong. The police, however, put the fif-
teen participants in their vehicles and took them to the police
station. At the police station the participants were kept
together in a waiting room and questioned separately. When
questioned, Kohli said she joined the association to bring
awareness to women about sati and dowry. She testified that
the police officer told her that these were cultural practices
and should not be changed. Kohli also testified that when she
was taken into the room for questioning, “when he took me
instead of telling me to sit down he actually took my shoul-
ders and told me to sit down, pushed me down on the chair.”
Kohli was released after a couple of hours and called her
grandmother who then came and picked her up.
Her grandmother was upset, called Kohli’s parents in
Kuwait, and suggested that they should take Kohli back to
Kuwait. Kohli explained that it was a really bad thing for an
Indian girl at the age of sixteen to be detained by the police.
Her parents talked to her on the phone and told her to come
back to Kuwait, but Kohli said she was happy in India.
Some time after this, Kohli and other members of the asso-
ciation were in a park drawing flyers and planning for the
next rally. A single police officer approached the group. The
group leader explained that they were not doing a rally, just
planning for a future rally, and the police officer left.
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Kohli testified that the police officer must have called her
grandmother because her grandmother told her that if she did
not stop going to the meetings, her parents would take her
back to Kuwait. A week later Kohli’s father came and took
her back to Kuwait.
Kohli remained in Kuwait for nine months and then
returned to India for a month to put her affairs in order and
for a vacation. While in India, Kohli did not attend rallies, but
continued to do work for the association. She then returned to
Kuwait, stayed a month and a half, and then came to the
United States.
Kohli entered the United States in 1997 as a visitor, intend-
ing to stay a month, but then decided to remain and attend
school. She graduated from high school in 1999. In February
2001, Kohli married a Pakistani citizen who had previously
been granted asylum in the United States. Kohli applied for
asylum in December 2001. In February 2002, the application
was rejected because she had not sought asylum within a year
of her arrival in the United States and had not demonstrated
that the delay was caused by extraordinary circumstances.
Kohli was served with a NTA charging her with being remov-
able for remaining in the United States without authorization.
At her removal hearing, the Immigration Judge (“IJ”) deter-
mined that Kohli’s asylum application was time-barred
because it was submitted late and there were no exceptional
circumstances to justify the delay. Addressing the merits of
her requests for relief, the IJ concluded that Kohli’s testimony
was not credible and denied her application for asylum, with-
holding of removal, and relief under the CAT. The IJ further
noted, in the alternative, that even if Kohli was credible, the
police conduct she encountered did not rise to the level of per-
secution.
The IJ based his determination on discrepancies between
Kohli’s declaration, her testimony, and the letter she submit-
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ted to verify her membership in the association. The IJ noted
that Kohli testified that all of her activities took place in New
Dehli, but the letter stated that she joined the association “in
Punjab” and that Kohli’s declaration stated that “while in
Chandigarth” she “took active part in protests against the dis-
criminatory laws of TADA, that is the Indian anti-terrorist act,
that was designed to crush political activities from the Pun-
jab.” He further noted that Kohli testified that she had only
been kept in the police station for a couple of hours, but her
declaration stated that she “was kept at the police station over
night and physically abused, degraded without committing
any crime.” Also, while Kohli testified to a single visit to a
police station, her declaration stated that she was taken to the
police station several times.
In the course of the proceedings before the IJ, Kohli moved
to terminate the proceedings because the signature and title of
the issuing officer on the Form I-862 NTA were illegible. The
IJ denied the motion to terminate noting that (1) neither the
statute nor the regulation requires that the title of the issuing
officer be included on the NTA, (2) the argument was waived
by Kohli’s admission to the allegations in the NTA and con-
cession of removability, (3) Kohli had not been prejudiced by
not knowing the identity of the issuing officer, and (4)
because there was no indication that the NTA was improperly
issued, the presumption of regularity attached.
Kohli appealed to the BIA. The BIA agreed with the IJ that
Kohli had not demonstrated eligibility for asylum, had failed
to establish grounds for granting other forms of relief, and
otherwise affirmed the IJ’s decision based on the reasons set
forth therein, without further elaboration.
Kohli filed a timely petition for review with this court.
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II. The alleged defect in the Notice to Appear was not
jurisdictional
A. Petitioner’s contentions
Kohli argues that jurisdiction in a removal proceeding vests
when a NTA is filed with the Immigration Court. 8 C.F.R.
§ 1003.14. She contends that the contents of a NTA are care-
fully prescribed in 8 U.S.C. § 1229(a)(1),2 citing Matter of G-
Y-R, 23 I. & N. Dec. 181 (BIA 2001). Kohli asserts that 8
C.F.R. § 299.1 directs that the NTA must use Form I-862, and
that the form “requires the signature and title of the issuing
immigration officer.” Kohli claims that the party asserting
jurisdiction has the burden of proving all jurisdictional facts.
She then addresses the four reasons offered by the IJ for
denying her motion to terminate proceedings. In response to
the IJ’s observation that 8 U.S.C. § 1229(a)(1)(B) does not
require that the NTA indicate the title of the issuing officer,
Kohli asserts:
The defect upon which the motion is based is not the
failure to indicate the title of the issuing officer, per
se. But rather, since the signature on the NTA is
illegible and the name and title of the official are not
indicated, the IJ is in no position to determine
whether he in fact has jurisdiction.
Second, Kohli denies that she waived the issue, arguing that
a challenge to jurisdiction cannot be waived, citing Cardenas-
Uriate v. INS, 227 F.3d 1132 (9th Cir. 2000), and Olivera-
Garcia v. INS, 328 F.3d 1083 (9th Cir. 2003). Third, Kohli’s
answer to the IJ’s finding of no prejudice is that (a) prejudice
is not required where there is a lack of jurisdiction, and (b)
she did establish prejudice because the outcome would have
2All statutory references are to Title 8 of the United States Code unless
otherwise indicated.
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been different, e.g., the proceedings would have been termi-
nated. Finally, Kohli argues that the IJ’s invocation of the pre-
sumption of regularity improperly shifts the burden of
establishing jurisdiction from the government to her.
B. Applicable legal standards
The sufficiency of the NTA is a question of law, which is
reviewed de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788,
791 (9th Cir. 2003) (holding that legal determinations by the
BIA and due process claims are reviewed de novo).
[1] The process of removal is commenced by giving written
notice in person to the alien informing him or her of:
(A) The nature of the proceedings against the alien.
(B) The legal authority under which the proceed-
ings are conducted.
(C) The acts or conduct alleged to be in violation
of law.
(D) The charges against the alien and the statutory
provisions alleged to have been violated.
8 U.S.C. § 1229(a)(1)(A)-(D). The actual removal proceeding
to determine the deportability or inadmissibility of an alien “is
commenced by the filing of a notice to appear with the immi-
gration court.” 8 C.F.R. § 1239.1(a). A regulation further pro-
vides that this notice shall be given in accordance with 8
C.F.R. § 239, which authorizes a number of officials to issue
a NTA.3
38 C.F.R. § 239.1(a) reads:
Issuance of notice to appear. Any immigration officer, or supervi-
sor thereof, performing an inspection of an arriving alien at a
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[2] Thus, the issuance of a NTA pursuant to 8 C.F.R.
§ 239.1(a) does not create jurisdiction in the Immigration
Court. Rather, jurisdiction vests in the Immigration Court
“when a charging document is filed” with the Immigration
Court. 8 C.F.R. § 1003.14. See also 8 C.F.R. § 1239.1(a). Sec-
tion 1003.14 requires a certificate showing service, but does
not suggest that there are any other jurisdictional requirements.4
port-of-entry may issue a notice to appear to such alien. In addi-
tion, the following officers, or officers acting in such capacity,
may issue a notice to appear:
(1) District directors (except foreign); (2) Deputy district direc-
tors (except foreign); (3) Chief patrol agents; (4) Deputy chief
patrol agents; (5) Assistant chief patrol agents; (6) Patrol agents
in charge; (7) Assistant patrol agents in charge; (8) Field opera-
tions supervisors; (9) Special operations supervisors; (10) Super-
visory border patrol agents; (11) Service center directors; (12)
Deputy service center directors; (13) Assistant service center
directors for examinations; (14) Supervisory district adjudications
officers; (15) Supervisory asylum officers; (16) Officers in
charge (except foreign); (17) Assistant officers in charge (except
foreign); (18) Special agents in charge; (19) Deputy special
agents in charge; (20) Associate special agents in charge; (21)
Assistant special agents in charge; (22) Resident agents in
charge; (23) Supervisory special agents; (24) Directors of investi-
gations; (25) District directors for interior enforcement; (26) Dep-
uty or assistant district directors for interior enforcement; (27)
Director of detention and removal; (28) Field office directors;
(29) Deputy field office directors; (30) Supervisory deportation
officers; (31) Supervisory detention and deportation officers; (32)
Directors or officers in charge of detention facilities; (33) Direc-
tors of field operations; (34) Deputy or assistant directors of field
operations; (35) District field officers; (36) Port directors; (37)
Deputy port directors; (38) Supervisory service center adjudica-
tions officers; (39) Unit Chief, Law Enforcement Support Center;
(40) Section Chief, Law Enforcement Support Center; or (41)
Other officers or employees of the Department or of the United
States who are delegated the authority as provided by 8 CFR 2.1
to issue notices to appear.
48 C.F.R. § 1003.14 states, in relevant part:
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[3] When presented with allegations that an agency has vio-
lated its own regulation, we have recognized that such a claim
is subject to judicial review, but have held that in order to be
granted relief “the claimant must show that he was prejudiced
by the agency’s mistake.” Patel v. INS, 790 F.2d 786, 788
(9th Cir. 1986). In United States v. Cerda-Pena, 799 F.2d
1374, 1377 (9th Cir. 1986), we reiterated:
This Circuit has held that a violation of an INS regu-
lation does not invalidate a deportation proceeding
unless the regulation serves a purpose of benefit to
the alien. United States v. Rangel-Gonzales, 617
F.2d 529, 530 (9th Cir. 1980). In addition, even if
the regulation does not serve a purpose of benefit to
the alien, a violation of that regulation will not ren-
der a deportation unlawful unless the violation preju-
diced the interests of the alien protected by the
regulation. [footnote omitted] Id. Thus, the violation
of an INS regulation will render a deportation unlaw-
ful if the regulation in question serves a purpose of
benefit to the alien and its violation prejudiced the
interests of the alien that it was intended to protect.
Id.
See also United States v. Calderon-Medina, 591 F.2d 529,
531 (9th Cir. 1979) (holding that a claimant may only be
granted relief based on a violation of an INS regulation if “the
regulation serves a purpose of benefit to the alien” and “the
violation prejudiced interests of the alien which were pro-
tected by the regulation”).5 The BIA has taken a similar
(a) Jurisdiction vests, and proceedings before an Immigration
Judge commence, when a charging document is filed with the
Immigration Court by the Service. The charging document must
include a certificate showing service on the opposing party pursu-
ant to § 1003.32 which indicates the Immigration Court in which
the charging document is filed.
5We recognize that there is some authority in other circuits that “when
a regulation is promulgated to protect a fundamental right derived from
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approach to alleged violations of immigration regulations.
Matter of Jorge Tadeo Carrera Hernandez, 21 I. & N. Dec.
224, 226 (BIA 1996) (“[T]his Board has consistently held that
the violation of a regulatory requirement invalidates a pro-
ceeding only where the regulation provides a benefit to the
alien and the violation prejudiced the interest of the alien
which was to be protected by the regulation”) (citing Matter
of Garcia Flores, 17 I. & N. Dec. 325 (BIA 1980)).
C. Application of the legal standards to petitioner’s
contentions
Under the applicable case law, statutes and regulations it
appears that to be entitled to relief, Kohli must show that the
Immigration Court lacked jurisdiction or that she was preju-
diced by the alleged defect in the NTA. We conclude that she
has failed to make either showing.
Kohli’s argument that the Immigration Court lacked juris-
diction is not based on the regulations that provide the Immi-
gration Court with jurisdiction, but on the underlying NTA
that issued pursuant to a separate regulation. In other words,
she does not contend that the government did not follow the
regulations that gave the Immigration Court jurisdiction, but
argues that an alleged defect in the NTA deprived the court
of jurisdiction. But in order to make a persuasive argument
that an alleged defect in the NTA compromised the Immigra-
tion Court’s jurisdiction, Kohli must show that the defect had
some impact on her rights.
[4] Notwithstanding Kohli’s arguments, the NTA in this
case certainly provided her with all the information required
the Constitution or a federal statute, and the INS fails to adhere to it, the
challenged deportation proceeding is invalid and a remand to the agency
is required.” Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994). We decline
to consider whether we should adopt such a standard because here the
alleged defect does not concern a regulation “promulgated to protect a
fundamental right.”
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by 8 U.S.C. § 1229(a)(1)(A) through (D). It carried the head-
ing “U.S. Department of Justice, Immigration and Naturaliza-
tion Service,” and stated that the removal proceedings were
brought “under section 240 of the Immigration and National-
ity Act.” The NTA fully informed Kohli of the charges
against her and directed her to appear before an IJ to show
why she should not be removed from the United States.
[5] The name and title of the officer who issued the NTA
were not legible, but Kohli has not shown that these were
required by any statute or regulation. Kohli’s NTA was on a
Form I-862, as prescribed by 8 C.F.R. § 299.1. Kohli, how-
ever, has failed to trace the inclusion on Form I-862 of space
for the name and title of the issuing officer directly to any
statute or regulation. As Kohli has not shown that any statute
or regulation requires the inclusion of the name and title of
the issuing officer on the NTA, it follows that she has not
shown that the fact that the name and title on her NTA are
illegible constitutes a violation of a regulation.
[6] The Immigration Court’s jurisdiction is also supported
by the well established principle of federal law that adminis-
trative agencies are entitled to a presumption that they “act
properly and according to law.” Federal Communications
Commission v. Schreiber, 381 U.S. 279, 296 (1965). “In the
absence of clear evidence to the contrary, courts presume that
public officers properly discharge their duties . . . .” County
of Del Norte v. United States, 732 F.2d 1462, 1468 (9th Cir.
1984) (citing 3 K. Davis, Administrative Law Treatise § 17.6
(2d ed. 1980) (quoting United States v. Chemical Foundation,
Inc., 272 U.S. 1, 14-15 (1926))). See also United States v.
Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (“The
presumption of regularity supports the official acts of public
officers, and, in the absence of clear evidence to the contrary,
courts presume that they have properly discharged their offi-
cial duties.”) (internal citations omitted); see also INS v.
Miranda, 459 U.S. 14 (1982).
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[7] Kohli’s claim that the invocation of the presumption of
regularity improperly shifted the burden of establishing juris-
diction onto her is not well taken. The government met its
burden of establishing jurisdiction in the Immigration Court
by issuing a NTA pursuant to 8 U.S.C. § 1229(a)(1), and then
filing that notice to appear with the Immigration Court. See 8
C.F.R. §§ 1003.14, 1239.1(a). Furthermore, Kohli admitted to
proper service, which is required by 8 U.S.C. § 1229(a)(1).
Thus, the presumption of regularity only comes into play
because Kohli challenges the government’s prima facie show-
ing of jurisdiction. A presumption can be rebutted. Here, how-
ever, Kohli has not come forward with any evidence
indicating that the person who signed the NTA lacked the
authority to do so. Indeed, in light of the number of officials
that may sign a NTA pursuant to 8 C.F.R. § 239.1(a), it
appears that the decision to issue a NTA is not limited to the
discretion of highly placed officers, and it seems unlikely that
the official who signed the NTA was not authorized to do so.
Given the lack of any indication that the NTA was not prop-
erly issued, and the lack of any prejudice to Kohli, this court
may presume that the agency officials properly discharged
their official duties pertaining to the issuance of Kohli’s NTA.
[8] In addition, there is no evidence that Kohli was preju-
diced by the alleged defect in the NTA. When Kohli appeared
before the IJ, she accepted service of the NTA, admitted the
factual allegations in the NTA, and conceded removability.
Furthermore, when she subsequently filed a motion to termi-
nate proceedings before the IJ, she did not seek to withdraw
any of her concessions and admissions. She did not request
that the record be supplemented to clearly state the name and
title of the official who issued the NTA. Instead, she argued
only that the lack of a legible name and title deprived the IJ
of jurisdiction. Because Kohli has not shown, and on this
record cannot show, that the alleged defect obscured the
charges against her or obstructed her ability to respond to the
charges and present her requests for asylum and other relief,
the alleged defect was not prejudicial.
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We further note that a careful reading of the case cited by
Kohli, Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001),
supports our determination that the alleged defect in the NTA
was not jurisdictional, and also suggests the relationship
between jurisdiction and prejudice. In that case, the issue was
whether an IJ could order an alien removed in absentia when
the alien had never received notice of the removal hearing. Id.
at 183. In other words, the question was whether the IJ had
jurisdiction over the alien even though she was absent. The
BIA first determined that the agency had failed to properly
serve the alien with the NTA as required by the applicable
statutes. The BIA noted that the alien’s constitutional right of
due process of law required that she be provided with notice
of the proceedings and an opportunity to be heard. Id. at 186.
The BIA, however, then commented that even if the agency
failed to serve the alien as required by the statute, her consti-
tutional right to notice could be met through a showing that
the alien received actual notice. Id. Because the alien had not
received actual notice, the BIA proceeded to consider a sec-
ond statutory provision which would allow a finding that the
alien had received constructive notice. Id. at 187-90. The BIA
determined that the agency had failed to comply with the stat-
utory requirements for establishing constructive notice, and
concluded that this failure, coupled with the alien’s failure to
receive actual notice, required a grant of relief.
For our purposes, Matter of G-Y-R- has two critical hold-
ings. The first is that the government’s failure to serve the
alien as required by the applicable statutes did not deprive the
IJ of jurisdiction. The IJ would retain jurisdiction if the
agency could show either that the alien had received actual
notice or that it had complied with the statutory provisions for
constructive notice. Since the government’s failure to comply
with a notice requirement in Matter of G-Y-R- did not auto-
matically deprive the IJ of jurisdiction, it follows that in this
case the alleged defect in Kohli’s NTA does not automatically
deprive the Immigration Court of jurisdiction.
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Second, in Matter of G-Y-R- the BIA’s determination that
the IJ lacked jurisdiction was based on the finding of a denial
of the constitutional right to due process of law because the
alien had not received actual or constructive notice of the pro-
ceedings. Accordingly, the alien was prejudiced because with-
out notice she had no opportunity to respond to the charges
against her. In this case, the alleged defect in the NTA does
not implicate any constitutional right and did not prejudice
Kohli because it did not interfere with her understanding of
the charges against her or her ability to respond to those
charges. Thus, Matter of G-Y-R- supports our determination
that Kohli has failed to demonstrate that the alleged defect in
her NTA deprived the Immigration Court of jurisdiction.6
[9] We have reviewed the adequacy of the NTA de novo.
See Lopez-Urenda, 345 F.3d at 791. We conclude that the
agency complied with the regulations that vest jurisdiction in
the Immigration Court and that the alleged defect in the NTA
did not deprive the Immigration Court of jurisdiction. Our
conclusion is supported by our determinations that Kohli has
failed to demonstrate that (1) she did not have notice of the
charges against her, (2) the alleged defect was a direct viola-
tion of any applicable statute or regulation, (3) the presump-
tion of regularity for agency action does not apply, and (4) she
was prejudiced by the alleged defect. Thus, Kohli has failed
to show that the alleged defect violated any regulation
intended to benefit her or that she was prejudiced by that vio-
lation. See Cerda-Pena, 799 F.2d at 1377. The IJ properly
denied Kohli’s motion to terminate the proceedings.
6The other cases cited by Kohli are not applicable. Both Cardenas-
Uriate, 227 F.3d 1132, and Olivera-Gracia, 328 F.3d 1083, concerned
specific statutory limitations on the jurisdiction of this court to hear peti-
tions to review certain deportation orders. Kohli has proffered no authority
that directly supports her claim that a defect in a NTA may deprive the
Immigration Court of jurisdiction.
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III. Petitioner is not entitled to withholding of removal
or relief under the CAT.
A. Petitioner’s contentions
As Kohli admits that she is not eligible for asylum,7 her
credibility arguments concern only her requests for withhold-
ing of removal and relief under the CAT. Kohli attempts to
explain away the inconsistencies between her testimony and
her declaration. She claims that: (a) although she initially tes-
tified that she only participated in demonstrations concerning
human rights, she later clarified her testimony; (b) the person
who assisted her in preparing her declaration “mistakenly
understood her 5 hour detention to amount to being held over
night;” and (c) she was grabbed and pushed by the police offi-
cer and that the definition of torture is broad enough to
include such activity. She also explains that the association is
headquartered in Chandigarth, a city in Punjab, but that her
activities with the association took place in New Delhi. Kohli
admits that her testimony was inconsistent on some points,
but urges that the inconsistencies are minor and insignificant
in nature.
B. Applicable legal standards
[10] In order to qualify for withholding of removal, an
applicant must demonstrate that it is more likely than not that
she would be subject to persecution based on one of the
grounds specified in 8 U.S.C. § 1101(a)(42)(A). Al-Harbi v.
INS, 242 F.3d 882, 888 (9th Cir. 2001). We have noted that
persecution is “the infliction of suffering or harm upon those
7The IJ found Kohli ineligible for asylum because she had failed to
apply for asylum within a year of arriving in the United States as required
by 8 U.S.C. § 1158(a)(2)(B), and because she had failed to establish
changed circumstances within the meaning of 8 U.S.C. § 1158(a)(2)(D).
Kohli recognizes that these findings are not subject to judicial review
under 8 U.S.C. § 1158(a)(3).
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who differ (in race, religion or political opinion) in a way
regarded as offensive,” and “is an extreme concept that does
not include every sort of treatment our society regards as
offensive.” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir.
2004) (internal quotation marks and citations omitted). Relief
under the CAT, on the other hand, requires a showing “that
it is more likely than not that [the applicant] would be tortured
if removed to the proposed country of removal.” 8 C.F.R.
§ 208.16(c)(2). See also Kamalthus v. INS, 251 F.3d 1279,
1283 (9th Cir. 2001).
Where the BIA reviews and incorporates the IJ’s decision,
we treat the incorporated parts of the IJ’s decision as the
BIA’s decision. Molina-Estada v. INS, 293 F.3d 1089, 1093
(9th Cir. 2002). We give deference to the IJ’s determination
of adverse credibility, and like any factual finding, it is “con-
clusive unless any reasonable adjudicator would be compelled
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Chebchoub v. INS,
257 F.3d 1038, 1042 (9th Cir. 2001) (“Chebchoub cannot pre-
vail unless he demonstrates that any reasonable factfinder
would necessarily conclude that he is eligible for relief from
deportation.”).
C. Application of the legal standards
[11] Kohli’s arguments notwithstanding, the IJ’s finding of
adverse credibility is substantially supported by the discrepan-
cies between Kohli’s testimony, her declaration, and her letter
of membership. For example, Kohli’s declaration stated that
she had been “kept at the police station over night and physi-
cally abused,” but before the IJ she testified that she had only
been kept at the station for a couple of hours and the only
“abuse” was that an officer pushed her down into a chair.
Kohli’s attempt to divert blame to the person who helped her
prepare her declaration is not persuasive because Kohli is flu-
ent in English and had no need for assistance in completing
her declaration. Also, as noted by the IJ, while the letter of
association membership stated that Kohli joined the associa-
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tion in Punjab, India, and was “victimized and jailed due to
her support and work on Human rights and relations and [sic]
Chandigarth-Punjab,” Kohli’s testimony before the IJ was all
about her activities in New Delhi, which is some distance
from Chandigarth. These inconsistencies are neither minor
nor insignificant, but are central to Kohli’s claim of past per-
secution and abuse. Accordingly, the inconsistencies support
the IJ’s finding of adverse credibility. See Guo v. Ashcroft,
361 F.3d 1194, 1201 (9th Cir. 2004) (reiterating that inconsis-
tencies must go to the heart of an asylum claim to justify an
adverse credibility finding). As Kohli has not presented com-
pelling evidence of her credibility, the IJ’s adverse credibility
determination should not be disturbed.
We further note that even if the IJ’s adverse credibility
finding were suspect, we agree with his alternate finding that
accepting Kohli’s testimony as true, she has not shown a like-
lihood of persecution should she be returned to India.
The IJ reasonably held:
the Court finds that even if [Kohli’s] testimony was
credible, what she experienced does not rise to the
level of persecution. According to [Kohli], she had
one brief detention of two or three hours in which
she was not mistreated. She was simply asked ques-
tions and then released. There was another occasion
in which the police told her to go home and stop ral-
lying and she did. There was another occasion in
which the police called her grandmother and said
that they thought it was in her best interest to stop
participating with these activists. This strikes the
Court as not terribly different than the authorities in
the United States calling a parent or a grandparent in
this instance and suggesting that a child was hanging
around with the wrong crowd of people. This is cer-
tainly not a threat to [Kohli’s] life and freedom.
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[12] Finally, regardless of whether Kohli’s version of her
treatment in India is credible or not, she has failed to demon-
strate that there is any reasonable likelihood that she will be
tortured if returned to India. Accordingly, she is not entitled
to any relief under the CAT.
IV. Conclusion
Although the signature and title of the issuing official on
Kohli’s NTA were not legible, the IJ properly denied her
motion to terminate proceedings because she has not shown
that the alleged defect deprived the Immigration Court of
jurisdiction. Moreover, Kohli has not shown that the alleged
defect was contrary to a regulation designed to benefit her or
that she was prejudiced by the alleged defect. See Cerda-
Pena, 799 F.2d at 1377. Also, our review of the record reveals
that the IJ’s adverse credibility determination was supported
by substantial evidence, and that Kohli has not shown that she
is entitled to withholding of removal, or relief under the CAT.
Accordingly, her petition for review is DENIED.
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