D'Souza v. Holder

MEMORANDUM ** Alldrin Lino D’Souza, a native and citizen of India, petitions for review of the Board of Immigration Appeals’ denial of his application for asylum, 1 withholding of removal, 2 and Convention Against Torture (CAT) relief. 3 We have jurisdiction 4 and we deny the petition. The BIA’s determination that an alien is not eligible for asylum must be upheld if “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). “It can be reversed only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.2003). When an alien seeks to overturn the BIA’s adverse determination, “he must show that the evidence he presented was so compelling that no reasonable fact-finder could fail to find the requisite fear of persecution.” Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817. The same standard applies to credibility determinations. See Lanza v. Ashcroft, 389 F.3d 917, 933 (9th Cir.2004); Alvarez-Santos v. INS, 332 F.3d 1245, 1254 (9th Cir.2003). However, when a determination is based upon credibility, “ ‘a specific, cogent reason’ ” for disbelieving the alien must be offered. Guo v. Ashcroft, 361 F.3d 1194, 1199 (9th Cir.2004). We have reviewed the record and we are satisfied that the BIA’s decision was sup *349 ported by substantial evidences. 5 The BIA determined that D’Souza lacked credibility because of inconsistencies that went to the heart of his asylum and other pre-REAL ID Act claims. See Kaur v. Gonzales, 418 F.3d 1061, 1064-65 (9th Cir.2005); Li v. Ashcroft, 378 F.3d 959, 962-63 (9th Cir.2004). When it came to the most significant evidence of persecution, the death of his father and D’Souza’s own political activity in India, his credibility was severely compromised. The date, place, manner and reporting for his father’s death were subject to numerous inconsistencies, and D’Souza’s claim of political activity was undercut by his failure to know the name of the organization for which he claimed to have labored day and night. In short, we are unable to say that a “reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815. Because D’Souza did not meet his burden regarding asylum, he necessarily failed to establish eligibility for withholding of removal. See Farah, 348 F.3d at 1156; Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995). Finally, the evidence in the record does not compel a determination that it is more likely than not that D’Souza would be tortured in India. Thus, he is not entitled to CAT relief. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.2009); Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir.2006); Singh v. Gonzales, 439 F.3d 1100, 1113 (9th Cir.2006). We have also considered D’Souza’s claim that there were problems with the interpreters, 6 and because of that he should have been granted a continuance of the proceedings before the IJ. 7 However, he has failed to point to any instance of faulty translation that actually influenced the outcome of the proceeding, 8 and, in fact, he communicated quite well in English. 9 We perceive no prejudice under the circumstances. Petition DENIED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. [1] 8U.S.C. § 1158. [2] U.S.C. § 1231(b)(3). [3] United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R. § 1208.18. [4] We have jurisdiction to review the petition in this "asylum-only” proceeding for the reasons stated in Nian v. Holder, 683 F.3d 1227, 1227 (9th Cir.2012). [5] Because the BIA cited Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A.1994) and also gave its own specific reason that D'Souza was not credible, we review both the determinations of the BIA and those of the Immigration Judge (IJ). See Joseph v. Holder, 600 F.3d 1235, 1240 (9th Cir.2010); cf. Tamang v. Holder, 598 F.3d 1083, 1088 (9th Cir.2010). [6] See Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994); see also Perez-Lastor v. INS, 208 F.3d 773, 778 (9th Cir.2000). [7] See Cui v. Mukasey, 538 F.3d 1289, 1292 (9th Cir.2008). [8] See Hartooni, 21 F.3d at 340. [9] The proceedings after D’Souza decided to go forward without an interpreter bear this out. He agreed to be cross-examined in English, although the government was willing to waive cross-examination.