                                                                            FILED
                               NOT FOR PUBLICATION                           MAY 23 2013

                                                                         MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT

BALBIR SINGH DHALIWAL,                               No. 08-74719

             Petitioner,
                                                     Agency No. A97-111-147
  v.

ERIC H. HOLDER, Jr., Attorney General,
                                                     MEMORANDUM *
             Respondent.




                           On Petition for Review of an Order of the
                                Board of Immigration Appeals

                                  Submitted May 16, 2013 **
                                  San Francisco, California

Before: CLIFTON and BEA, Circuit Judges, and DUFFY, District Judge.***

       Balbir Singh Dhaliwal (“Petitioner”), a native and citizen of India, petitions


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his

appeal from an immigration judge’s (“IJ”) decision denying his applications for

asylum and withholding of removal. Petitioner also appeals the BIA’s affirmance

of the IJ’s finding that Petitioner’s testimony during removal proceedings was not

credible and that Petitioner filed a frivolous application for asylum. This court has

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.1

      Adverse credibility findings are reviewed for substantial evidence, meaning

they are “conclusive unless any reasonable adjudicator would be compelled to

conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (2012); Malkandi v. Holder,

576 F.3d 906, 917 (9th Cir. 2009). In pre-REAL ID cases, an adverse credibility

ruling must be upheld so long as identified inconsistencies go to “the heart of [the]

asylum claim.” Singh v. Ashcroft, 301 F.3d 1109, 1111 (9th Cir. 2002) (quotation

omitted). The IJ, however, must give the asylum applicant a “reasonable

opportunity” to explain inconsistencies in his testimony. Chen v. Ashcroft, 362

F.3d 611, 618 (9th Cir. 2004).

      Here, the BIA discussed specific inconsistencies in Petitioner’s testimony,

his application for asylum, and other documentary evidence introduced during


      1
         Since Petitioner filed his application for relief before May 11, 2005, pre-
REAL ID Act standards apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1
(9th Cir. 2005).

                                          2
removal proceedings that cast substantial doubt upon his identity, membership in a

persecuted group, and the veracity of his accounts of persecution. Petitioner argues

that the IJ did not provide him a reasonable opportunity to explain certain

discrepancies and refused to accept his reasonable explanations for others. The

record, however, reveals that counsel and the IJ not only attempted to clarify

inconsistencies in Petitioner’s presentation with further inquiry, but that

Petitioner’s proffered explanations only generated additional ambiguity. Because

no reasonable factfinder would be compelled to reach the opposite conclusion, we

hold that substantial evidence supports the BIA’s adverse credibility determination.

      We review de novo a finding that an applicant filed a frivolous application

for asylum and whether the IJ complied with the requisite procedural safeguards.

See Yan Liu v. Holder, 640 F.3d 918, 925 (9th Cir. 2011); Ahir v. Mukasey, 527

F.3d 912, 917 (9th Cir. 2008). “[A]n asylum application is frivolous if any of its

material elements is deliberately fabricated.” 8 C.F.R. § 208.20 (2012).

      First, Petitioner does not dispute whether he received proper notice of the

consequences of filing a frivolous asylum application. Second, the IJ found

deliberate fabrication based on the unreliability of Petitioner’s specific

documentary submissions, discrepancies between those submissions and his

testimony, and his inability to clarify such discrepancies upon further inquiry.


                                           3
Third, the record supports the frivolousness finding by a preponderance of the

evidence. Finally, the IJ afforded Petitioner adequate opportunities to address the

potentially fraudulent aspects of his asylum application. For these reasons, the

frivolousness finding stands.

      Where substantial evidence supports an adverse credibility determination

concerning key elements of a claim for withholding of removal, this Court must

defer to those credibility findings in upholding the BIA’s denial of that relief. See

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because the BIA’s

adverse credibility ruling concerns Petitioner’s identity, membership in a protected

group, and persecution on account of that membership, substantial evidence

supports its denial of Petitioner’s application for withholding of removal. See

Malkandi, 576 F.3d at 912.

      PETITION DENIED.




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