Kumar Ajay v. WILLIAM P. BARR, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KUMAR AJAY,
Petitioner,
v.
WILLIAM P. BARR, Attorney General,
Respondent.
No. 18-71496
Agency No. A213-016-992
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
Kumar Ajay, a native and citizen of India, petitions pro se for review of the
Board of Immigration Appeals’ order dismissing his appeal from an immigration
judge’s (“IJ”) decision denying his application for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual
* 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).
FILED
FEB 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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findings, applying the standards governing adverse credibility determinations
created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th
Cir. 2010). We deny in part and dismiss in part the petition for review.
Substantial evidence supports the agency’s adverse credibility determination
based on inconsistencies between Ajay’s credible fear interview and his testimony,
as well as an inconsistency between Ajay’s testimony and documentary evidence
as to the nature of his father’s death. See Shrestha, 590 F.3d at 1048 (adverse
credibility finding reasonable under the totality of the circumstances). Ajay’s
explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241,
1245 (9th Cir. 2000). Thus, in the absence of credible testimony, in this case,
Ajay’s asylum and withholding of removal claims fail. See Wang v. Sessions, 861
F.3d 1003, 1009 (9th Cir. 2017).
Ajay’s CAT claim also fails because it is based on the same testimony that
the agency found not credible, and Ajay does not point to any other evidence in the
record that compels the conclusion that it is more likely than not he would be
tortured by or with the consent or acquiescence of the government of India. See
id.
Ajay has waived any challenge to the agency’s denial of his due process
claims. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not
raised in an opening brief are waived).

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We lack jurisdiction to consider Ajay’s contentions regarding his credible
fear interview because he did not raise them to the agency. See Barron v. Ashcroft,
358 F.3d 674, 677-78 (9th Cir. 2004).
We reject as meritless Ajay’s contention of misconduct by the IJ.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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