Rattan Singh; Kuar Singh Kamal v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RATTAN SINGH; KUAR SINGH
KAMAL,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-72689
Agency Nos. A097-115-042
A097-115-043
MEMORANDUM*
RATTAN SINGH; KUAR SINGH
KAMAL,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-70976
Agency Nos. A097-115-042
A097-115-043
RATTAN SINGH; KUAR SINGH
KAMAL,
Petitioners,
No. 10-72585
Agency Nos. A097-115-042
A097-115-043
FILED
MAY 15 2014
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.

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v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 12, 2014 **
San Francisco, California
Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.
Petitioners Rattan Singh and Kamal Kuar Singh, husband and wife, seek
review of the Board of Immigration Appeals’ (BIA) decisions: (1) adopting and
affirming the Immigration Judge’s (IJ) decision denying petitioners’ application for
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT); (2) denying petitioners’ motion to reopen; and (3) denying
petitioners’ motion to reconsider. Because the parties are familiar with the facts
and procedural history of this case, we repeat only those facts necessary to resolve
the issues raised on appeal. We deny the petition for review.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2

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Rattan Singh alleges that he was persecuted in Fiji due to his Indian ethnicity
and support of the Fiji Labor Party. Kamal Kuar Singh did not file an individual
petition for asylum and merely seeks asylum as a derivative of her husband’s
application. For this reason, her claim must rise or fall with his. See Kumar v.
Gonzales, 439 F.3d 520, 521, 525 (9th Cir. 2006).
On April 25, 2005, the IJ held a merits hearing, at which husband and wife
testified. The IJ made an adverse credibility determination, finding that each
petitioner’s testimony was internally inconsistent and inconsistent with the other’s
testimony. The IJ concluded that there was no credible evidence that the Singhs
were actually active in the Labor Party, or that the Singhs were persecuted on the
basis of their Indo-Fijian ethnicity or political participation. The BIA affirmed.
Before this court, Rattan Singh concedes that the IJ’s adverse credibility
finding should not be disturbed with regard to his testimony. Nonetheless, Mr.
Singh argues that he is entitled to asylum based on his wife’s allegedly credible
testimony and certain documentary evidence, and that Mrs. Singh is entitled to
asylum as a derivative of his petition.
Where there is substantial evidence to support an adverse credibility
determination, the petitioner must show that corroborating evidence overcomes the
agency’s credibility determinations. Garcia v. Holder, --- F.3d ---, 2014 WL
3

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1465699, at *5–6 (9th Cir. Apr. 16, 2014); Malhi v. I.N.S., 336 F.3d 989, 993 (9th
Cir. 2003). It is undisputed that Kamal Kuar’s testimony was materially
inconsistent with her husband’s with regard to incidents that go to the heart of
petitioners’ pre-REAL ID Act claim. Accordingly, her testimony only lends further
support to the IJ’s adverse credibility determination, and her testimony does not
overcome her husband’s lack of credibility. See Singh v. Holder, 643 F.3d 1178,
1182 (9th Cir. 2011); Kin v. Holder, 595 F.3d 1050, 1058 (9th Cir. 2010).
Additionally, while petitioners submitted newspaper articles describing a violent
incident at their home, these articles do show that the incident was the result of
persecution, and therefore, they cannot overcome Rattan Singh’s lack of credibility
with regard to his persecution claims.
Lacking credible evidence of past persecution or a well-founded fear of
future persecution, Rattan Singh has not carried his burden to show that “no
reasonable factfinder could fail to find the requisite fear of persecution.” INS v.
Elias-Zacarias, 502 U.S. 478, 484 (1992). Because Mr. Singh is ineligible for
asylum, he fails to demonstrate eligibility for withholding of removal. See Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Mr. Singh’s claim for protection
under CAT fails because he has not provided credible evidence that it is more
likely than not that he will be tortured if he returns to Fiji. See Kamalthas v. INS,
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251 F.3d 1279, 1283 (9th Cir. 2001). Kamal Kuar’s claims also fail, because they
are derivative of her husband’s non-meritorious claims. Kumar, 439 F.3d at 521,
525.
Finally, the BIA did not abuse its discretion in denying petitioners’ untimely
motion to reopen and motion for reconsideration. An untimely motion to reopen
may be filed only in the event of changed circumstances in the petitioner’s country
and only “if such evidence is material and was not available and could not have
been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii);
see also INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii). To be “material,”
the evidence must be of the type that, if the proceedings were reopened, “would
likely change the result in the case.” See Malty v. Ashcroft, 381 F.3d 942, 945 (9th
Cir. 2004). Petitioners merely submitted evidence that a new military regime in Fiji
has led to an increasingly unstable political climate. They did not provide new,
previously unavailable evidence concerning persecution of Indo-Fijians, nor did
they provide evidence that would undermine the IJ’s adverse credibility
determination with regard to Rattan Singh’s alternate claims of persecution.
PETITION DENIED.
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