United States v. 2007-06-13 | 05-70298 | GOEL VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 VARUN GOEL,
Petitioner, No. 05-70298
v.  Agency No.
ALBERTO R. GONZALES, Attorney A78-638-722
General,
Respondent. 
 VARUN GOEL,
Petitioner, No. 05-74006
v. Agency No.
 A78-638-722ALBERTO R. GONZALES, Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
April 20, 2007—San Francisco, California
Filed June 14, 2007
Before: Mary M. Schroeder, Chief Circuit Judge,
Stephen S. Trott, Circuit Judge, and Gary A. Feess,*
District Judge.
*The Honorable Gary A. Feess, United States District Judge for the
Central District of California, sitting by designation.
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Per Curiam Opinion
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COUNSEL
Martin Resendez Guajardo and Teresa Salazar, Law Office of
Martin Resendez Guajardo, San Francisco, California, for the
petitioner.
Darcy Katzin and Lindsay L. Chichester, United States
Department of Justice, Washington, D.C., for the respondent.
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OPINION
PER CURIAM:
Petitioner Varun Goel, a native and citizen of India, peti-
tions for review of his final order of removal. He challenges
the adverse credibility finding in the Immigration Judge’s
decision that was summarily affirmed by the Board of Immi-
gration Appeals. He also challenges the BIA’s later denial of
a motion to reopen that was supported primarily by polygraph
examination results.
The case presents an issue of first impression regarding the
use of polygraph results in motions to reopen removal deci-
sions. We agree with the BIA that polygraph evidence pro-
vides no adequate basis for reopening because it is not
evidence that was previously unavailable within the meaning
of the applicable regulation. 8 C.F.R. § 1003.2(c). Moreover,
in this case, the original negative credibility finding was sup-
ported by substantial evidence. We therefore deny the peti-
tion.
BACKGROUND
Goel ascribes to the Nirankari faith, a minority religious
group in India. He claims to have been persecuted in India, on
account of his religious beliefs, by Sikh militants as well as
by police officials, all of whom are allegedly hostile to those
identifying as Nirankari. After entering the United States on
a nonimmigrant visa and overstaying its terms, Goel was
placed in removal proceedings. He conceded removability,
and applied for asylum, withholding of removal, and relief
under the Convention Against Torture.
The IJ denied all applications for relief, primarily on the
basis of a negative credibility finding, concluding that Goel’s
testimony materially contradicted the documentary evidence
in several ways. For example, Goel testified that on one occa-
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sion, Sikh militants fired upon him and his family with heavy
rounds of ammunition in a drive-by shooting at their home. A
press report, however, submitted by Goel in support of his
application, was not consistent with Goel’s testimonial ver-
sion of the event. The report described Goel and his father as
having been physically beaten outside their home. It described
the assailants as having fired into the air in a show of intimi-
dation as they ran off to their vehicle.
Goel also testified that he was not injured in the attack, but
this too was inconsistent with the press report’s version of the
incident, which described Goel and his father as having sus-
tained injuries. When asked to explain these inconsistencies,
Goel responded only that the report was wrong.
Goel further testified that he and his father were arrested
and tortured for several days by local police when they tried
to report the attack on their home. According to Goel’s testi-
mony, the police beat his knees with sticks, forcibly stripped
him of his clothes, and ripped off patches of skin with a knife,
rendering him unconscious from the pain. This too contra-
dicted the documentary evidence. A letter written by Goel’s
father and also submitted by Goel, described only a brief
period of humiliation and harassment, and did not mention
any torture, physical abuse, or lengthy confinement.
The IJ noted all of these inconsistencies in making a nega-
tive credibility finding, observed Goel had a “tendency to
exaggerate,” and denied relief. The BIA summarily affirmed
without opinion, and Goel timely petitioned this court for
review.
While the petition was pending, Goel filed a motion to
reopen pursuant to 8 C.F.R. § 1003.2(c)(1). The motion was
supported primarily by polygraph examination results going
to the veracity of Goel’s testimony before the IJ regarding the
torture in India. He claimed the polygraph report was evi-
dence that was “not available” within the meaning of the
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applicable regulation’s provision that motions to reopen must
be supported by evidence “not available” earlier. 8 C.F.R.
§ 1003.2(c)(1).
The only relevant questions and answers in the proffered
polygraph report were the following:
(1) Have you lied about being tortured during your
two political arrests by the Amritsar Police?
Answer: No.
(2) Have you lied about being tortured during your
two arrests by the Amritsar Police, which is now
under investigation?
Answer: No.
(3) Is there any part of your claim of torture while
under two political arrests which is a lie?
Answer: No.
The examiner concluded he believed that Goel’s answers
were truthful.
Goel also submitted a medical examination report. It con-
cluded that the scars on his body “may be consistent” with the
torture Goel alleges he experienced.
The BIA denied reopening concluding that Goel could not
show that either the polygraph evidence or the medical report
was previously unavailable, and could not have been discov-
ered or presented at the IJ hearing. Goel timely petitioned this
court to review that denial as well as the removal order. Both
petitions have been consolidated and are now before the court.
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DISCUSSION
A. Motion To Reopen
The novel issue in this case is whether polygraph examina-
tion results qualify as evidence that was “not available”
within 8 C.F.R. § 1003.2(c)(1), and thus may support a suc-
cessful motion to reopen. We hold that polygraph evidence
may not.
[1] Under 8 C.F.R. § 1003.2(c)(1), reopening is proper only
where the moving party can satisfy specific criteria. It pro-
vides:
A motion to reopen proceedings shall not be granted
unless it appears to the Board that evidence sought
to be offered is material and was not available and
could not have been discovered or presented at the
former hearing[.]
8 C.F.R. § 1003.2(c)(1).
The key question, therefore, is whether the allegedly new
information was unavailable at the time of the movant’s hear-
ing. If it was available or capable of being discovered at that
time, it cannot provide a basis for reopening.
In Guzman v. INS, 318 F.3d 911 (9th Cir. 2003) (per
curium), for example, we held that the noncitizen’s discovery
that he mistakenly reported the wrong date of entry at his
deportation hearing could not provide the basis for reopening
because the allegedly “new information” about his entry date
“was available and capable of discovery prior to his deporta-
tion hearing.” Guzman, 318 F.3d at 913. By contrast, in Bha-
sin v. Gonzales, 423 F.3d 977 (9th Cir. 2005), we held that the
evidence offered in support of reopening was previously
unavailable because it concerned events that did not occur
until after the IJ hearing. Bhasin, 423 F.3d at 987.
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[2] Here, the polygraph evidence that Goel offers concerns
events that allegedly occurred in India well before his IJ hear-
ing. Goel was not in custody while awaiting his removal hear-
ing, and was thus free to gather the evidence in support of his
applications for relief. The polygraph report is evidence that
could have been obtained at that time and that could have
been presented at his hearing to help resolve inconsistencies
in his own evidence. See Guzman, 318 F.3d at 913. Indeed,
Goel concedes that there was no reason why he could not
have secured a polygraph report between the time he was
released and the time he first appeared before the IJ.
[3] The BIA also viewed the polygraph evidence as unreli-
able. Goel argues that the polygraph report constitutes
stronger evidence than his documentary evidence. According
to Goel, the report establishes the truth of his testimony that
in turn was based on first hand knowledge. As the Supreme
Court has explained, however, “there is simply no consensus
that polygraph evidence is reliable. To this day, the scientific
community remains extremely polarized about the reliability
of polygraph techniques.” United States v. Scheffer, 523 U.S.
303, 309 (1998).
[4] Finally, even if reliable, the polygraph report could not
establish prima facie eligibility for asylum. At most, the poly-
graph test results establish that Goel’s fear of being perse-
cuted is subjectively genuine. They do not establish or even
relate to the objective reasonableness of the fear. See Ladha
v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (“To establish a
well-founded fear of persecution, petitioners must show their
fear to be both objectively reasonable and subjectively genu-
ine.”).
[5] We do not necessarily preclude the discretionary con-
sideration of polygraph evidence by an IJ or the BIA at earlier
stages of a removal proceeding. But we do hold that poly-
graph evidence cannot serve as the basis for reopening under
8 C.F.R. § 1003.2(c).
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[6] Also in support of his motion to reopen, Goel submitted
a medical report which explained that his scars are consistent
with the torture he claims to have experienced. Because this
report also concerns events that occurred well before the IJ
hearing, and there is also no reason why Goel could not have
obtained and presented this evidence to the IJ, this report can-
not qualify as evidence that was previously unavailable either.
B. The Credibility Determination
Goel challenges the IJ’s underlying adverse credibility
finding, contending it relies on minor inconsistencies that do
not go to the heart of his claim for relief. See Mendoza
Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). The
inconsistencies were material because they bore on the key
issue of whether he suffered past persecution. Goel’s testi-
mony was at odds with his own documentary evidence as to
the nature of the persecution.
[7] We have held inconsistencies between testimonial and
documentary evidence to be a proper basis for an adverse
credibility finding. Wang v. INS, 352 F.3d 1250, 1258-59 (9th
Cir. 2003). Whether Goel was physically beaten or whether
he was fired upon, and whether he incurred actual injuries or
escaped unscathed were issues crucial to the IJ’s evaluation of
whether Goel had experienced persecution, and whether he
had any objectively reasonable fear of future persecution. The
adverse credibility finding was founded upon inconsistencies
that went to the heart of Goel’s claim.
CONCLUSION
[8] Goel provided no adequate basis for reopening and the
IJ’s adverse credibility finding was supported by substantial
evidence.
The petitions for review are DENIED.
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