Jawahar Lal, Wati Kirna Lal v. Immigration and Naturalization Service
| Publisher | United States Court of Appeals for the Ninth Circuit |
| Publication Date | 30 December 1994 |
| Citation / Document Symbol | Fed. R. App. P. 34(a); 9th Cir. R. 34-4 |
| Type of Decision | 92-70306 |
| Cite as | Jawahar Lal, Wati Kirna Lal v. Immigration and Naturalization Service, Fed. R. App. P. 34(a); 9th Cir. R. 34-4, United States Court of Appeals for the Ninth Circuit, 30 December 1994, available at: https://www.refworld.org/cases,USA_CA_9,3ae6b6d24.html [accessed 21 May 2023] |
| Comments | Submitted: 15 December, 1994; Filed: 30 December, 1994 The panel unanimously finds this case suitable for decision without oral argument |
| Disclaimer | This is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States. |
JAWAHAR LAL; WATI KIRNA LAL, Petitioners, v. IMMIGRATION &
NATURALIZATION SERVICE, Respondent.
No. 92-70306 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
December 15, 1994, ** Submitted, San Francisco, California ** The panel unanimously finds this case suitable for
decision without oral argument. Fed. R. App. P. 34(a); 9th
Cir. R. 34-4.
December 30, 1994, FILED
Subsequent History: Reported in Table Case Format at: 46 F.3d 1142.
Prior History:
Petition for Review of a Decision of the Board of Immigration Appeals. INS Nos. A28-771-000, A28-770-575.Disposition:
DENIED.Judges:
Before: WALLACE, Chief Judge, PREGERSON and BEEZER, Circuit Judges.Opinion:
MEMORANDUM * * This disposition is not appropriate for publication and may not be cited to or used by the courts of this circuit except as provided by Ninth Circuit Rule 36-3. Jawahar and Wati Kirna Lal, ethnic Indian citizens of Fiji, petition for review of a ruling of the Board of Immigration Appeals ("Board") affirming the Immigration Judge's ("IJ") denial of their application for asylum and withholding of deportation. The Board concluded that the Lals did not present credible evidence of either past persecution or a well-founded fear of future persecution. We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We deny the petition.[1]I
Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) authorizes the Attorney General, in her discretion, to grant asylum to an alien who is a refugee. The Act defines a refugee as an alien who is unable or unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). A well-founded fear of persecution has both objective and subjective components. Estrada-Posadas v. INS, 924 F.2d 916, 918 (9th Cir. 1991). The subjective component may be satisfied by "an applicant's credible testimony that he genuinely fears persecution." Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir. 1993). The objective inquiry "requires a showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground." Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994) (internal quotations and citations omitted). A petitioner cannot establish a well-founded fear of persecution unless he or she presents credible evidence in support of the application. Estrada-Posadas, 924 F.2d at 918-19. An adverse credibility finding based on a specific, cogent reason will be upheld under the substantial evidence standard. Id. at 919.II
The Lals first argue that the Board's negative credibility findings were inconsistent with the IJ's credibility determinations. We disagree. The Board adopted all of the IJ's negative credibility findings, and made additional ones of its own. The Board has the power to adopt credibility findings of the IJ. Berroteran-Melendez v. INS, 955 F.2d 1251, 1256 (9th Cir. 1992). When it does so, we review those findings as the Board's own. Id. The Board also has the power to review the record de novo and make its own findings of fact, including credibility findings. Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986). It did so here. Even if we concluded that the Board's order was inconsistent with the IJ's decision, we review the order of the Board, not the decision of the IJ. Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir. 1988).III
The Lals next argue that the Board's credibility determination was not supported by substantial evidence. We disagree. The Board provided specific cogent reasons for its findings that Jawahar Lal was not credible, and a reasonable factfinder would not be compelled to reach a different result. The Board, in a well-reasoned five page decision, reviewed four specific credibility matters. The Board disbelieved Jawahar Lal's claim that his parents were involved in political activity, because Lal provided vague testimony lacking both detail and corroboration. The Board deemed incredible Lal's claims that a telephone call to a relative in Fiji, Jayant Pratap, was tapped and later transferred to a Fijian military base. Those who tap telephone calls would not, the Board reasoned, break in on the conversation. The Board also made two negative credibility findings regarding a letter written to Lal by Pratap, which was submitted as evidence by the Lals. The Board stated that the letter was internally inconsistent and conflicted with Lal's testimony. The letter indicated that Lal's parents had disappeared, but also stated that the parents were living currently as squatters. The letter also indicated that Pratap had been arrested in April 1988, while Lal testified that Pratap had been incarcerated weeks earlier because of the telephone tap. Although Lal offered various explanations for the inconsistencies and tried to add detail to the sparse evidence, it is the Board's role to make credibility determinations. Indeed, Lal's explanations are less persuasive than the Board's. Lal complained that it was unfair to impute to him any negative credibility because of inconsistencies in the Pratap letter, but it was Lal who submitted the letter in support of his application. Thus, Lal cannot avoid negative implications of the letter any more than he can avoid such implications from his own testimony.IV
The Lals raise other arguments regarding the Board's decision that are without merit. The Lals object to the Board's purported rejection of their claim of a well-founded fear of persecution. As the INS correctly points out, the Board did not decide whether, assuming that Lal's testimony was credible, there was a well-founded fear of individualized persecution. Because we agree with the Board's decision on credibility, we need not proceed further. Neither is it necessary for us to address the Lals' arguments about the Board's expression of suspicion of the means by which Lal entered the United States. The Board stated that Lal's misrepresentations in getting to this country were a "weighty adverse factor" with respect to the Board's exercise of discretion. The Board, however, denied the Lals' asylum claim on statutory grounds because of their failure to present credible evidence. Further, the Board granted voluntary departure. Thus, no discretionary asylum decision was made.V
Because the Lals failed to provide credible evidence that demonstrated the requisite fear of persecution required for asylum, it follows that they cannot meet the more stringent standard for withholding of deportation. De Valle v. INS, 901 F.2d 787, 793 (9th Cir. 1990). The petition for review is DENIED.[1]After the Lals filed their petition for review in this case, they filed a motion to reopen with the Board. The Lals then moved to have us hold our decision in abeyance or dismiss their petition without prejudice pending the outcome of their motion to reopen. We deny the Lals' motion. When a motion to reopen is filed after the petition for review, we are not divested of jurisdiction. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir. 1992). Rather, we have discretion to either suspend our proceedings or continue. Because concerns of judicial efficiency weigh in favor of addressing the merits of the petition before us, we will do so. We will, however, direct the clerk by separate order to withhold the mandate for not less than 60 days from the date of filing of this memorandum.
