                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 11-1378

                              KAMAL DAHAL,

                       Petitioner, Appellant,

                                     v.

                       ERIC H. HOLDER, JR.,
              Attorney General of the United States

                        Respondent, Appellee.


              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS


                                  Before

                      Boudin, Circuit Judge,
                    Souter, Associate Justice,*
                   and Thompson, Circuit Judge.


     Jose A. Vazquez for appellant.
     Tony West, Assistant Attorney General, with whom Carl H.
McIntyre and Justin R. Markel were on brief, for appellee.




                              July 24, 2012




     *
          The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
            SOUTER,   Associate   Justice. The Board of Immigration

Appeals denied an alien’s motion to reopen and reconsider his

application for asylum and comparable relief.          We find no abuse of

discretion, see INS v. Doherty, 502 U.S. 314, 323 (1992), and

affirm.

            Kamal Dahal is a native and citizen of Nepal, admitted to

the United States in April 2006 on an H-2B visa, as a nonimmigrant,

temporary, non-agricultural worker.         His status was later changed

to a B-2 visitor for pleasure, and he was authorized to remain in

the United States until May 15, 2007.           About a month before that

deadline,    Dahal    applied   for   asylum,    see   8   U.S.C.   §   1158,

withholding of removal, see 8 C.F.R. § 1208.16, and protection

under the United Nations Convention Against Torture.1          His case was

later referred to an immigration judge,2 who held a merits hearing

on December 17, 2008, at which Dahal testified.            The judge denied

his petition that same day.

            An alien is eligible for asylum if he is a “refugee,”

meaning a person “unable or unwilling to return to” his home



     1
      This treaty was implemented in the United States by section
2242(b) of the Foreign Affairs Reform and Restructuring Act of
1998, Pub. L. 105-277, 112 Stat. 2681 (Oct. 21, 1998), and 8 C.F.R.
§ 1208.16.
     2
      While his application was pending, the Department of Homeland
Security placed him in removal proceedings by filing a Notice to
Appear charging him with remaining in the United States without
permission. See 8 U.S.C. § 1227(a)(1)(B).

                                      -2-
country   “because    of   persecution        or   a    well-founded    fear   of

persecution on account of race, religion, nationality, membership

in a particular social group, or political opinion.”                    8 U.S.C.

§ 1101(a)(42).       If, for the same reasons, an alien’s “life or

freedom would be threatened in the proposed country of removal,” 8

U.S.C. § 1231(b)(3), he qualifies for withholding of removal under

the Immigration and Nationality Act.                   Lastly, removal may be

withheld under the Convention Against Torture if “it is more likely

than not that [the alien] would be tortured if removed to the

proposed country of removal.”          8 C.F.R. § 1208.16(c)(2).           Dahal

contended that he could not safely return to Nepal, because he

feared that members of a powerful Maoist insurgency in that country

would persecute him at least partly on the basis of his membership

in the Nepali Congress Party, which he has served in humanitarian

activities    and   assisted    in    local   elections.        The   insurgents

allegedly extorted money from him at his business, insisted that he

quit the Congress Party, invaded his house, took money from his

family, and brutally beat him.         After continued harassment, Dahal

says, he sent his wife and son to live with her parents in a

different village, while he stayed with a friend in another village

before traveling to the United States.

             The immigration judge noted “multiple inconsistencies”

between   Dahal’s    accounts    of    things      at   the   hearing   and    the

allegations in his petition, but nonetheless made no adverse


                                       -3-
credibility finding, and even noted that Dahal generally appeared

to have testified in earnest.      Yet he did not provide sufficient

evidence to “overcome the inconsistencies and omissions,” which

left the judge with enough doubt about the reliability of his

testimony that she ultimately held that Dahal’s overall claim for

relief “fails for lack of proof.”

          Dahal   filed   a   notice    of   appeal   with   the   Board   of

Immigration Appeals in January 2009, resulting in affirmance of the

immigration judge’s decision in October 2010.           A month later, he

presented the Board with a motion to reopen his case, offering new

documentary evidence supporting his claims of oppression at the

hands of the Maoists, and claiming it was error for the judge to

deny his petition for lack of documentation while at the same time

finding him credible.     The Board denied the motion to reopen to

submit new evidence, construed Dahal’s latter contention as a

motion to reconsider, and denied it as well.

          Although there was leeway for judgment in ruling on the

motion, we think it was not an abuse of discretion to deny it.             To

his motion Dahal attached several exhibits that supported his

claims, including a report from an emergency medical clinic,

receipts for donations to the Nepali Congress Party, a police

report mentioning Maoists’ threats aimed at Dahal and extortion

from him, his birth certificate, and bank statements for himself

and his business.   He subsequently added affidavits from his wife


                                  -4-
and a former neighbor, as well as a letter from the Congress Party.

The Board nevertheless denied his motion to reopen for failure to

establish that any of these documents was unobtainable at an

earlier stage of the process, see 8 U.S.C. § 1158(b)(1)(B); 8

C.F.R. § 1003.2(c), and we may reverse this finding only if “a

reasonable trier of fact [would have been] compelled to conclude

that such corroborating evidence [was] unavailable” sooner.        8

U.S.C. § 1252.   Dahal has not shown this.   Although he claimed that

it was difficult to get documentation from Nepal, he had, as the

Board pointed out, included some Nepalese documents with his

original application, and did not convincingly explain why the

paperwork later submitted could not have been produced as well. He

offers no additional details in his briefs on appeal; rather, he

reiterates that the documents were difficult to procure because

they were in Nepal, and because his family’s record keeping was

disrupted by their change of residence.      This shows that it took

work to get the evidence, but it does not compel reversal of the

Board’s finding that Dahal failed to show he lacked a prior

opportunity to produce the records.

          In fact, Dahal’s position is even weaker than that.    His

lawyer was presumably aware that the immigration judge would expect

to review documentary evidence at the initial hearing, see 8 C.F.R.

§ 1208.9(e), but even assuming that it was not until the hearing

date of December 17, 2008 that he had notice of the need for more


                                 -5-
corroboration,       he    could   have   moved       to   reopen   proceedings   to

introduce his new evidence.               See 8 C.F.R. § 1003.23.             As it

happened, however, nearly two years passed between the immigration

judge’s ruling and the Board’s decision on the initial appeal.                    He

apparently made no attempt to supplement the record until after the

appeal went against him, and it was at that late date that he

failed to carry his burden of showing that the evidence “was not

available and could not have been discovered or presented at the

former hearing.”          8 C.F.R. § 1003.2(c).

              As to what the Board treated as Dahal’s request for

reconsideration, he argues that the immigration judge’s finding

that he was a credible witness should have obviated any need for

documentation.       But more than credibility in a strict sense is or

may be at stake.          An immigration judge “may” grant asylum to an

alien on the basis of his testimony alone, “but only if the

applicant     [not    only]    satisfies        the   trier   of    fact   that   the

applicant’s testimony is credible, [but also] is persuasive, and

refers   to    specific      facts   sufficient       to   demonstrate     that   the

applicant is a refugee.”           8 U.S.C. § 1158(b)(1)(B).3          To be sure,



     3
      The same standard applies to motions to withhold removal
under the Immigration and Nationality Act.           See 8 U.S.C.
§ 1231(b)(3)(C) (“In determining whether an alien has demonstrated
that the alien’s life or freedom would be threatened . . . the
trier of fact shall determine whether the alien has sustained the
alien’s burden of proof, and shall make credibility determinations,
in the manner described in clauses (ii) and (iii) of section
1158(b)(1)(B) of this title.”).

                                          -6-
the regulations implementing the Convention Against Torture do not

go into such detail (providing only that “[t]he testimony of the

applicant, if credible, may be sufficient to sustain the burden of

proof without corroboration.” 8 C.F.R. § 1208.16(c)(2)). But even

here, the governing standard is “may be sufficient,” which at most

authorizes   a   judge   to   withhold    removal   without   corroborative

evidence, but mandates nothing more. Thus it is not enough to cite

cases from other circuits in which credible testimony sufficed, see

Karouni v. Gonzales, 399 F.3d 1163, 1173-74 (9th Cir. 2005); Diallo

v. INS, 232 F.3d 279, 287-89 (2d Cir. 2000), and for that matter

the cases Dahal cites pre-date the REAL ID Act of 2005’s amendments

to   the   relevant   statutes,    recognizing      discretion   to    demand

documentary confirmation.       Accordingly, this circuit has recently

upheld immigration judges’ denials of withholding of removal where

“the [immigration judge] found the petitioner generally credible

but faulted [him] for failing to provide corroboration.”              Chhay v.

Mukasey, 540 F.3d 1, 6-7 (1st Cir. 2008); Sela v. Mukasey, 520 F.3d

44, 46 (1st Cir. 2008).           There was no error in the Board’s

affirmance of the immigration judge who did the same thing here.

            Affirmed.




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