Jagan Babu Giri v. Merrick B. Garland, U.S. Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
Jagan Babu Giri,
Petitioner,
v.
Merrick B. Garland, U.S. Attorney
General,
Respondent.
No. 21-999
Agency No. A206-183-568
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 27, 2023**
San Francisco, California
Before: BOGGS, *** M. SMITH, OWENS, Circuit Judges.
Jagan Babu Giri (“Giri”), a native and citizen of Nepal, petitions for
review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of
the immigration judge’s (“IJ”) denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
* 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 Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
MAR 29 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“CAT”). As the parties are familiar with the facts, we do not recount them
here. We have jurisdiction under 8 U.S.C. § 1252 and deny the petition.
Where, as here, the BIA summarily affirms the IJ, we review the IJ’s
decision. Alvarado v. Holder, 759 F.3d 1121, 1126 (9th Cir. 2014) (citation
omitted). We review adverse credibility determinations and denials of CAT
protection for substantial evidence. Wang v. Sessions, 861 F.3d 1003, 1007 (9th
Cir. 2017) (citation omitted). “Under this standard, we must uphold the agency
determination unless the evidence compels a contrary conclusion.” Duran-
Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019) (citation omitted).
1. Under the totality of the circumstances, substantial evidence
supports the IJ’s adverse credibility determination. See Alam v. Garland, 11
F.4th 1133, 1135 (9th Cir. 2021) (en banc). In two separate asylum applications
and during his direct examination, Giri alleged that he left Nepal for India on
September 10, 2009, and remained there for three years before returning to
Nepal. When the government asked on cross examination whether Giri had
traveled to Iraq sometime between 2009 and 2012, he denied having done so.
Only after further questioning did Giri admit that he worked in Iraq in 2011 for
“maybe two years,” although he could not recall the exact timeframe. When
asked to explain the discrepancy, Giri stated that he had forgotten about his time
in Iraq. Shortly thereafter, Giri changed his story again and testified he worked
in India for three years before returning to Nepal in 2012.

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While the agency relied solely on this ground in making its adverse
credibility determination, Giri’s inconsistent testimony about his travel to and
work in Iraq is significant because it goes to the “heart of the claim.” Shrestha
v. Holder, 590 F.3d 1034, 1046-47 (9th Cir. 2010); see also Alam, 11 F.4th at
1137 (“There is no bright-line rule under which some number of inconsistencies
requires sustaining or rejecting an adverse credibility determination.”). Giri’s
inconsistent testimony suggests that he either (1) left Nepal before 2009, which
conflicts with his claim that he was persecuted by Maoists in Nepal in 2009, (2)
was not working in India between 2009 and 2012, which undermines his claim
that he was mistreated as a migrant worker in India during that time, or (3) was
not in Nepal between 2012 and 2013, which contradicts his claim that he was
persecuted by Maoists before coming to the United States. See Shrestha, 590
F.3d at 1047 (holding that the petitioner’s “inability to consistently describe the
underlying events that gave rise to his fear was an important factor that could be
relied upon by the IJ in making an adverse credibility determination”). The IJ
also considered Giri’s explanation for the inconsistency and rejected it. See Li
v. Garland, 13 F.4th 954, 961 (9th Cir. 2021) (citation omitted). Because the
record does not compel a contrary conclusion, we uphold the adverse credibility
determination and deny the petition as to the asylum and withholding claims.1
1 We need not reach Giri’s merits-based challenge to the IJ’s denial of asylum
and withholding of removal because the IJ’s holding, which the BIA summarily
adopted, was based solely on the issue of credibility. See Garcia v. Wilkinson,

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2. Although “[a]n adverse credibility determination is not necessarily
a death knell to CAT protection,” substantial evidence supports the agency’s
denial of CAT relief here. Shrestha, 590 F.3d at 1048. Without credible
testimony, the remainder of the evidence does not compel the conclusion that
Giri is more likely than not to be tortured if returned to Nepal. See Dhital v.
Mukasey, 532 F.3d 1044, 1051-52 (9th Cir. 2008) (holding that country reports
describing “an ongoing struggle between the Nepalese government and the
Maoists” do not indicate that a petitioner faced a particularized threat of
torture). Accordingly, we deny the petition as to the CAT claim.2
3. Finally, Giri argues that the BIA abused its discretion by failing to
consider his second application for asylum, withholding of removal, and CAT
protection based on harm suffered as a Nepali migrant worker in India. The
BIA abuses its discretion when its decision is “arbitrary, irrational, or contrary
to law.” Cui v. Garland, 13 F.4th 991, 995-96 (citation omitted). “As a general
rule, the BIA errs if it ignores material issues or arguments raised on appeal, or
fails to make a finding on an essential issue.” Zamorano v. Garland, 2 F.4th
988 F.3d 1136, 1142 (9th Cir. 2021) (“In reviewing the BIA’s decisions, we
consider only the grounds relied upon by that agency.”).
2 In his brief, Giri challenges the IJ’s denial of CAT protection based on his fear
of torture in Nepal as raised in his first asylum application but does not
challenge the denial of CAT protection based on his fear of torture in India as
raised in his second asylum application. He therefore waived any objection to
the agency’s denial of CAT on the latter ground. See Cui v. Holder, 712 F.3d
1332, 1338 n.3 (9th Cir. 2013).

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1213, 1228 (9th Cir. 2021). But here, the BIA did not err. It summarily
affirmed the IJ’s decision, which explicitly denied Giri’s second application
because he provided contradictory testimony that disrupted his timeline of
events in India and failed to show that he is more likely than not to be tortured if
removed to India. Accordingly, the BIA did not abuse its discretion.
The stay of removal remains in place until the mandate issues.
PETITION DENIED.

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