Bikash Kunwar v. ROBERT M. WILKINSON, Acting Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BIKASH KUNWAR,
Petitioner,
v.
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
No. 16-73914
Agency No. A205-853-171
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 9, 2021**
San Francisco, California
Before: WALLACE, GOULD, and FRIEDLAND, Circuit Judges.
Bikash Kunwar, a native citizen of Nepal, petitions for review of the Board of
Immigration Appeals’ (Board) decision affirming the Immigration Judge’s (IJ)
denial of his application for asylum and withholding of removal. We have
jurisdiction pursuant to 8 U.S.C. § 1252. We deny the petition.
* 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
MAR 11 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Where, as here, the Board has incorporated portions of the IJ’s decision as its
own, “we treat the incorporated parts of the IJ’s decision as the” Board’s. In
reviewing the Board’s decision, “we consider only the grounds relied upon by that
[A]gency.” Santiago-Rodriguez v. Holder, 657 F.3d 820, 829 (9th Cir. 2011)
(citations omitted). We review the IJ’s factual findings, including adverse credibility
determinations, for substantial evidence. Shrestha v. Holder, 590 F.3d 1034, 1039
(9th Cir. 2010). These findings “are conclusive unless any reasonable adjudicator
would be compelled to conclude to the contrary.” Yali Wang v. Sessions, 861 F.3d
1003, 1007 (9th Cir. 2017) (citation omitted). We review the IJ’s and the Board’s
(collectively, the Agency) legal conclusions de novo. Santiago-Rodriguez, 657 F.3d
at 829.
Kunwar asserts he is a member of the Nepali Congress Party (NCP) and fears
harm by the Communist Party of Nepal-Maoist (Maoist) if returned to Nepal.
Kunwar alleges that members of the Maoist party threatened him because of his
political affiliation and his participation in small rallies against them. The Maoists
allegedly demanded Kunwar pay a “donation” or “something bad [would] happen to
[him]” because he spoke out against the Maoist party. Over the summer of 2012,
the Maoists allegedly called him, went to his home, and went to his workplace at the
family rice mill to threaten him, demand money, and insist that he join the Maoist
party. Eventually the Maoists allegedly beat him at his family’s rice mill, but he

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managed to escape. Kunwar fled Nepal shortly thereafter. Kunwar never reported
these incidents to the police because he thought they were afraid of the Maoists too.
The IJ denied Kunwar’s application for asylum, withholding of removal, and
protection pursuant to the Convention Against Torture (CAT) on adverse credibility
grounds. The IJ found that Kunwar was not credible because of the implausibility
of aspects of his claim, his attempted embellishments, as well as significant
inconsistencies in his testimony and between his testimony and submitted
documentation. We hold that substantial evidence supports the IJ’s determination
that Kunwar was not credible. Kunwar did not appeal from the IJ’s decision
regarding his CAT claim to the Board, and the Board upheld the IJ’s adverse
credibility determination.
In making an adverse credibility determination, an IJ must consider “the
totality of the circumstances.” 8 U.S.C. § 1158(b)(1)(B)(iii). The REAL ID Act
permits an IJ to consider “all relevant factors . . . without regard to whether an
inconsistency, inaccuracy, or falsehood goes to the heart of the applicant’s
claim.” Id. The Board reviews that determination under the clearly erroneous
standard. 8 C.F.R. § 1003.1(d)(3)(i). An adverse credibility decision based upon
specific record citations sufficiently supports the denial of asylum and withhold of
removal. See Singh v. Lynch, 802 F.3d 972, 975–77 (9th Cir. 2015) (also holding
that the adverse credibility finding supports the denial of CAT relief when the CAT

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claim is based entirely upon the same incredible statements).
The Agency discussed numerous instances of inconsistency, including who
knew about the alleged threats against Kunwar, Kunwar’s role in NCP, the location
of NCP meetings, and whether the alleged attacks against him had been reported to
the police or NCP. In addition, we focus on the significant discrepancies in
Kunwar’s evidence relating to the alleged physical altercation with the Maoists on
June 29, 2012. Kunwar testified that five Maoists confronted him on that day at his
father’s rice mill where he worked, and they beat him for his refusal to pay a donation
and become a member of the Maoist party. However, Kunwar’s account of this
incident is both inconsistent and implausible.
Kunwar gave different descriptions of the altercation. He stated the men used
sticks to beat him, but he had failed to mention sticks during his credible fear
interview. He also mentioned for the first time during his testimony that the Maoists
could have had guns, although he did not see them. These material changes to his
“story of persecution” cut against Kunwar’s credibility. See Zamanov v. Holder,
649 F.3d 969, 973–74 (9th Cir. 2011) (upholding adverse credibility finding because
petitioner’s omissions did not constitute “a mere lack of detail” but “went to the core
of his alleged fear of political persecution” and “materially altered his entire story in
a way that case doubt on his credibility”). Kunwar also vacillated on whether his
father was aware when the Maoists came to the mill.

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In addition, when confronted with the implausibility of his father directing
Maoists to Kunwar’s location without attempting to stop them or warn Kunwar,
Kunwar cited his father’s possible confusion, fear, or helplessness due to his age and
weight; however, Kunwar could not give a consistent age for his father, and it was
later revealed that his father was in his 50s, undermining this explanation. Kunwar’s
explanation for how he was able to escape, despite the Maoists’ greater numbers and
his having been beaten, was also implausible. Finally, Kunwar’s testimony about
reporting the Maoists’ arson of the rice mill to the police was also inconsistent with
his father’s statement.
Ultimately, Kunwar’s inconsistencies were numerous and substantive.
Without credible testimony, Kunwar’s asylum claim fails. As Kunwar’s eligibility
for withholding of removal relies on his asylum claim, his application for
withholding of removal also fails. Kunwar has not specifically discussed his CAT
claim in his Opening Brief or before the Board, and thus waives his appeal of that
claim. See Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005). For
these reasons, we are not compelled to reverse the Agency’s denial of Kunwar’s
application for asylum, withholding of removal, and CAT relief. Kunwar’s
petition is, therefore, DENIED.

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