Krishna Gurung v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISHNA GURUNG,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 15-72313
Agency No. A205-540-904
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2021**
San Francisco, California
Before: WATFORD and FRIEDLAND, Circuit Judges, and KORMAN,*** District
Judge.
Krishna Gurung, a native and citizen of Nepal, petitions for review of a
Board of Immigration Appeals (BIA) order upholding the immigration judge’s (IJ)
* 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 Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
FILED
NOV 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denial of his applications for asylum, withholding of removal, and protection under
the Convention Against Torture (CAT). We deny the petition for review.
1. Substantial evidence supports the agency’s adverse credibility
determination. First, Gurung offered inconsistent testimony regarding a February
2011 incident. In his declaration, Gurung stated that, in February 2011, he found
three Maoists waiting for him outside of his home who offered him a position in
their party and warned him to cooperate. At the merits hearing, however, Gurung
testified that members of the Maoist Party grabbed him while he was walking
home from the village, forced him to walk 45 minutes to their commander’s office,
and detained him at the office for two to three hours. When asked about the
inconsistencies between these two accounts, Gurung provided non-responsive
answers, paused for an extended period, and then explained that he made a mistake
in his declaration because his father was sick. It was not unreasonable for the
agency to reject this explanation. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1186
(9th Cir. 2016).
Second, Gurung omitted any mention in his declaration of a threatening
phone call he received in June 2009, but at the hearing Gurung testified that he
received a 45-minute phone call from a Maoist during which he was threatened
with death if he did not join the Maoist party. While omissions are generally less
probative of credibility than inconsistencies, an omission may still support an

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adverse credibility finding, particularly where the petitioner initially omits an event
that tells a more compelling story of persecution. See Lai v. Holder, 773 F.3d 966,
971 (9th Cir. 2014).
Finally, the adverse credibility determination is also supported by the
agency’s demeanor finding. We accord substantial deference to demeanor
findings, where, as here, they are based on specific instances the agency identifies
in the record. See Shrestha v. Holder, 590 F.3d 1034, 1041–42, 1045 (9th Cir.
2010).
In the absence of credible testimony, Gurung’s asylum and withholding of
removal claims fail.
2. Substantial evidence also supports the agency’s determination that
Gurung is not eligible for CAT protection. Gurung’s claim for relief is based on
the same testimony that the agency deemed not credible. While an adverse
credibility finding does not necessarily defeat a claim for CAT relief, Gurung’s
highly generalized country conditions evidence does not compel the conclusion
that he is more likely than not to be tortured. See id. at 1048–49.
PETITION FOR REVIEW DENIED.

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