Bor Enkhjargal v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BOR ENKHJARGAL,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-74483
Agency No. A089-674-710
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 17, 2016**
San Francisco, California
Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.
Bor Enkhjargal is a native and citizen of Mongolia who seeks review of the
Board of Immigration Appeals’ (“BIA”) denial of her application for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”).
FILED
MAR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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The Immigration Judge (“IJ”) found that Enkhjargal’s testimony lacked
credibility and, alternatively, that the application for asylum was time barred. The
BIA concluded that the IJ’s credibility determination was not clearly erroneous and
dismissed the appeal. Because the adverse credibility determination was
dispositive, the BIA did not reach the issues of whether Enkhjargal’s asylum claim
was time barred or whether she had established a proper nexus between the harm
she suffered and a protected ground. We affirm and deny the petition.
Enkhjargal filed her application for asylum in March of 2008 and is subject
to the REAL ID Act. The Act does not afford applicants a presumption of
credibility. 8 U.S.C. § 1158(b)(1)(B)(iii). Credibility determinations must be made
under the “totality of the circumstances,” taking into account “all relevant factors,”
including the applicant’s responsiveness, the plausibility and consistency of the
applicant’s account, and any inaccuracies in the applicant’s statements, whether or
not such inaccuracies “go [] to the heart of the applicant’s claim.” Id.
We review adverse credibility determinations for substantial evidence.
Malkandi v. Holder, 576 F.3d 906, 908 (9th Cir. 2009). Under this standard “[f]or
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. . . . When an inconsistency is cited as a factor supporting
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an adverse credibility determination, that inconsistency should not be a mere trivial
error . . . and the petitioner’s explanation for the inconsistency, if any, should be
considered in weighing credibility.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th
Cir. 2010).
Here, substantial evidence supports the BIA’s decision. Both the BIA and
the IJ cited to specific and cogent reasons to support the adverse credibility
determination. See id. at 1044. In concluding that the IJ’s adverse credibility
determination was not “clearly erroneous,” the BIA specifically noted the IJ’s
findings regarding Enkhjargal’s inconsistent statements about her husband and
persecutor, a police officer named Batcayar. The BIA agreed with the IJ that
Enkhjargal’s explanations were insufficient to rectify the discrepancy in her
testimony.
The BIA also correctly credited the IJ’s findings that Enkhjargal’s
corroborating evidence with respect to her marriage and subsequent hospitalization
was either flawed or non-existent. See id. at 1047 (“[W]e may not reverse the IJ’s
and BIA’s conclusion that [the petitioner] should have been able to obtain []
supportive affidavit[s] . . . to corroborate h[er] claims . . . unless ‘a reasonable trier
of fact is compelled to conclude that such corroborating evidence is unavailable.’”)
(quoting 8 U.S.C. § 1252(b)(4)).
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In the absence of credible support for Enkhjargal’s claims, the BIA’s
conclusion that the IJ properly denied her application for asylum and withholding
of removal is supported by substantial evidence, as is the denial of protection under
CAT. See Singh v. Lynch, 802 F.3d 972, 977 (9th Cir. 2015) (“[W]hen a
petitioner’s ‘claims under [CAT] are based on the same statements . . . that the BIA
determined to be not credible’ in the asylum context, the agency may rely upon the
same credibility determination in denying both the asylum and CAT claims.”)
(quoting Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003)).
Enkhjargal also claims that her hearing before the IJ was full of
mistranslations; however, she did not supply any specific instances of
mistranslation. The BIA concluded that Enkhjargal had, therefore, waived this
argument. We agree. See Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1260 (9th Cir.
1996) (By “fail[ing] to address how the BIA [erred,] [the petitioner] has thereby
waived this issue.”).
PETITION DENIED.
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Enkhjargal v. Lynch, 13-74483
Wardlaw, Circuit Judge, dissenting:
I respectfully dissent. Although applicants are not entitled to a presumption
of credibility under the REAL ID Act, it remains incumbent upon the IJ to
“provide specific and cogent reasons in support of an adverse credibility
determination.” Shrestha v. Holder, 590 F.3d 1034, 1044 (9th Cir. 2010) (quoting
Malkandi v. Holder, 576 F.3d 906, 917 (9th Cir. 2009)). “[T]rivial
inconsistencies” do not suffice. Id. Here, the IJ “la[id her] cards on the table” and
admitted that she “d[idn’t] have a lot of cogent reasons” to support her adverse
credibility determination. Instead, she relied on trivial discrepancies that appear to
have resulted from translation problems rather than false testimony or evasion. I
would therefore grant Ms. Enkhjargal’s petition and remand to the agency for
consideration of the nexus and time-bar issues.
FILED
MAR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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