                                                                             FILED
                    UNITED STATES COURT OF APPEALS                           OCT 31 2013

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




SURINDER PAL,                                   No. 08-74060

              Petitioner,                       Agency No. A070-542-986

  v.
                                                ORDER
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


Before: SCHROEDER, RIPPLE*, and CALLAHAN, Circuit Judges.



       The petition for rehearing is granted for the limited purpose of withdrawing

the memorandum disposition filed on June 16, 2013, and the clerk shall substitute

the attached memorandum disposition. The petition for rehearing is otherwise

denied. No further petitions for rehearing will be entertained. Mandate shall issue

forthwith.




       *
            The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               OCT 31 2013

                                                                            MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

SURINDER PAL,                                     No. 08-74060

                       Petitioner,                Agency No. A070-542-986

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

                       Respondent.



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

                        Argued and Submitted June 12, 2013
                             San Francisco, California


Before: SCHROEDER, RIPPLE,** and CALLAHAN, Circuit Judges.

       Surinder Pal, a native and citizen of India, petitions for review of the order

of the Board of Immigration Appeals (“BIA” or the “Board”). That decision

affirmed an Immigration Judge’s (“IJ”) denial of his applications for asylum and

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
for protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252.

      Mr. Pal challenges the IJ’s adverse credibility determination. The pre-REAL

ID Act standards govern this case. Joseph v. Holder, 600 F.3d 1235, 1246 n.8 (9th

Cir. 2010). We review the BIA’s decision affirming an adverse credibility

determination for substantial evidence. Yaogang Ren v. Holder, 648 F.3d 1079,

1083 (9th Cir. 2011). We also review for substantial evidence the determination

that Mr. Pal has not established eligibility for asylum or CAT protection. See

Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir. 2009) (addressing asylum);

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007) (addressing a CAT claim).

      Mr. Pal’s objections to the adverse credibility determination are not

persuasive. He contends that the IJ was required to credit his explanation that the

inconsistencies between his first declaration and his amended declaration and

testimony are attributable to an unscrupulous preparer. The record demonstrates

that the IJ considered Mr. Pal’s explanation, which is all that we require. Rivera v.

Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). Even if the IJ had accepted

Mr. Pal’s explanation, it does not account for the inconsistencies that the IJ and the

BIA identified between his amended declaration, prepared by his attorney, and his

in-court testimony. These inconsistencies, such as the circumstances of his first


                                          2
arrest, the amount of the bribe paid to secure his release after his second arrest and

when he suffered physical injury from torture, go to the heart of Mr. Pal’s claim for

relief. Therefore, the adverse credibility determination is supported by substantial

evidence.

      Mr. Pal next alleges that the IJ violated his right to due process by failing to

give him additional opportunities to explain these inconsistencies. However, he

has not challenged the IJ’s requirement that he produce medical evidence to justify

additional continuances. Nor has he even alleged that he could have produced such

evidence. In any event, he has not established prejudice, as he must to prevail on a

due process claim. Gonzaga-Ortega v. Holder, No. 07-74361, --- F.3d ----, 2013

WL 5198549, at *8 (9th Cir. June 7, 2013). Indeed, he is silent concerning what

explanation for the inconsistencies he would offer were he granted another

continuance.

      Mr. Pal’s other claimed due process violation, the denial of a complete,

simultaneous translation, also fails. He has not demonstrated his entitlement to

such a translation or shown that the denial of such a translation prejudiced him.

Mr. Pal does not allege that, if he were provided with a translation of the IJ’s

discussion with his attorney, he would have produced the required medical

evidence of his inability to testify.


                                          3
      In support of his asylum claim, Mr. Pal offered his own testimony, which

was found incredible, as well as expert opinions. In light of the prior finding of

incredibility, the IJ concluded that the experts’ assessments, standing alone, were

insufficient to sustain Mr. Pal’s burden of proof on the issue of past persecution.

By this ruling, the IJ did not deprive Mr. Pal of the opportunity to present evidence

on his own behalf. He simply determined that the testimony of the experts was not

sufficient, standing alone, to carry the petitioner’s burden. The burden to establish

past persecution is significant, and we cannot say that the agency’s decision that

the standard was not met on the basis of the expert opinions, without credible

testimony from Mr. Pal himself, was not supported by substantial evidence.

      We note that, after it explicitly approved the IJ’s credibility determination on

at least two occasions,1 the Board addressed independently the argument that the IJ

had not permitted the petitioner to present evidence in support of his claim. In the

course of rejecting that argument, the Board said, erroneously, that, the witnesses’

evaluations are based on the same declaration that [Mr. Pal] continues to argue is




      1
        A.R. at 4 (“We conclude that these discrepancies, coupled with the
inconsistencies regarding the arrest, provide substantial evidence of the
respondent’s lack of credibility.”); id. at 4-5 (“Even accepting that the preparer was
unscrupulous, there is sufficient evidence of dishonesty in this case to support the
Immigration Judge’s adverse credibility finding.”).

                                          4
not correct.” A.R. at 5 (emphasis added).2 We think it is clear that the Board did

not make this statement in reaching its determination with respect to the

petitioner’s credibility; that matter already had been decided by the Board. In any

event, even if the Board had taken this misapprehension into account in

determining the credibility issue, it is clear from its approval of the IJ’s decision

(which does not share the Board’s misapprehension) that it gave this factor little, if

any, weight.

       Finally, Mr. Pal’s claim that the BIA engaged in improper factfinding with

regard to country conditions is not well-taken. The BIA “‘relied on the predicate

facts found by the Immigration Judge.’” Ridore v. Holder, 696 F.3d 907, 922 (9th

Cir. 2012) (quoting Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A. 2008)).

The Board specifically referred to Exhibit 4, which the IJ discussed and which

contains the very language used by the BIA.

       Because Mr. Pal’s CAT claim is based on the same statements as his asylum

claim, and country conditions evidence does not compel the conclusion that it is

more likely than not that he would be tortured if returned to India, his CAT claim

also fails.


       2
         As the IJ correctly noted, the experts’ testimony was based on the
narratives given to each expert by the petitioner, not on either of the petitioner’s
declarations.

                                           5
Petition DENIED.




                   6
                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               OCT 31 2013

                                                                            MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

SURINDER PAL,                                     No. 08-74060

                       Petitioner,                Agency No. A070-542-986

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

                       Respondent.



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

                        Argued and Submitted June 12, 2013
                             San Francisco, California


Before: SCHROEDER, RIPPLE,** and CALLAHAN, Circuit Judges.

       Surinder Pal, a native and citizen of India, petitions for review of the order

of the Board of Immigration Appeals (“BIA” or the “Board”). That decision

affirmed an Immigration Judge’s (“IJ”) denial of his applications for asylum and

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The Honorable Kenneth F. Ripple, Senior Circuit Judge for the U.S.
Court of Appeals for the Seventh Circuit, sitting by designation.
for protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 8 U.S.C. § 1252.

      Mr. Pal challenges the IJ’s adverse credibility determination. The pre-REAL

ID Act standards govern this case. Joseph v. Holder, 600 F.3d 1235, 1246 n.8 (9th

Cir. 2010). We review the BIA’s decision affirming an adverse credibility

determination for substantial evidence. Yaogang Ren v. Holder, 648 F.3d 1079,

1083 (9th Cir. 2011). We also review for substantial evidence the determination

that Mr. Pal has not established eligibility for asylum or CAT protection. See

Malkandi v. Holder, 576 F.3d 906, 912 (9th Cir. 2009) (addressing asylum);

Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007) (addressing a CAT claim).

      Mr. Pal’s objections to the adverse credibility determination are not

persuasive. He contends that the IJ was required to credit his explanation that the

inconsistencies between his first declaration and his amended declaration and

testimony are attributable to an unscrupulous preparer. The record demonstrates

that the IJ considered Mr. Pal’s explanation, which is all that we require. Rivera v.

Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). Even if the IJ had accepted

Mr. Pal’s explanation, it does not account for the inconsistencies that the IJ and the

BIA identified between his amended declaration, prepared by his attorney, and his

in-court testimony. These inconsistencies, such as the circumstances of his first


                                          2
arrest, the amount of the bribe paid to secure his release after his second arrest and

when he suffered physical injury from torture, go to the heart of Mr. Pal’s claim for

relief. Therefore, the adverse credibility determination is supported by substantial

evidence.

      Mr. Pal next alleges that the IJ violated his right to due process by failing to

give him additional opportunities to explain these inconsistencies. However, he

has not challenged the IJ’s requirement that he produce medical evidence to justify

additional continuances. Nor has he even alleged that he could have produced such

evidence. In any event, he has not established prejudice, as he must to prevail on a

due process claim. Gonzaga-Ortega v. Holder, No. 07-74361, --- F.3d ----, 2013

WL 5198549, at *8 (9th Cir. June 7, 2013). Indeed, he is silent concerning what

explanation for the inconsistencies he would offer were he granted another

continuance.

      Mr. Pal’s other claimed due process violation, the denial of a complete,

simultaneous translation, also fails. He has not demonstrated his entitlement to

such a translation or shown that the denial of such a translation prejudiced him.

Mr. Pal does not allege that, if he were provided with a translation of the IJ’s

discussion with his attorney, he would have produced the required medical

evidence of his inability to testify.


                                          3
      In support of his asylum claim, Mr. Pal offered his own testimony, which

was found incredible, as well as expert opinions. In light of the prior finding of

incredibility, the IJ concluded that the experts’ assessments, standing alone, were

insufficient to sustain Mr. Pal’s burden of proof on the issue of past persecution.

By this ruling, the IJ did not deprive Mr. Pal of the opportunity to present evidence

on his own behalf. He simply determined that the testimony of the experts was not

sufficient, standing alone, to carry the petitioner’s burden. The burden to establish

past persecution is significant, and we cannot say that the agency’s decision that

the standard was not met on the basis of the expert opinions, without credible

testimony from Mr. Pal himself, was not supported by substantial evidence.

      We note that, after it explicitly approved the IJ’s credibility determination on

at least two occasions,1 the Board addressed independently the argument that the IJ

had not permitted the petitioner to present evidence in support of his claim. In the

course of rejecting that argument, the Board said, erroneously, that, the witnesses’

evaluations are based on the same declaration that [Mr. Pal] continues to argue is




      1
        A.R. at 4 (“We conclude that these discrepancies, coupled with the
inconsistencies regarding the arrest, provide substantial evidence of the
respondent’s lack of credibility.”); id. at 4-5 (“Even accepting that the preparer was
unscrupulous, there is sufficient evidence of dishonesty in this case to support the
Immigration Judge’s adverse credibility finding.”).

                                          4
not correct.” A.R. at 5 (emphasis added).2 We think it is clear that the Board did

not make this statement in reaching its determination with respect to the

petitioner’s credibility; that matter already had been decided by the Board. In any

event, even if the Board had taken this misapprehension into account in

determining the credibility issue, it is clear from its approval of the IJ’s decision

(which does not share the Board’s misapprehension) that it gave this factor little, if

any, weight.

       Finally, Mr. Pal’s claim that the BIA engaged in improper factfinding with

regard to country conditions is not well-taken. The BIA “‘relied on the predicate

facts found by the Immigration Judge.’” Ridore v. Holder, 696 F.3d 907, 922 (9th

Cir. 2012) (quoting Matter of A-S-B-, 24 I. & N. Dec. 493, 498 (B.I.A. 2008)).

The Board specifically referred to Exhibit 4, which the IJ discussed and which

contains the very language used by the BIA.

       Because Mr. Pal’s CAT claim is based on the same statements as his asylum

claim, and country conditions evidence does not compel the conclusion that it is

more likely than not that he would be tortured if returned to India, his CAT claim

also fails.


       2
         As the IJ correctly noted, the experts’ testimony was based on the
narratives given to each expert by the petitioner, not on either of the petitioner’s
declarations.

                                           5
Petition DENIED.




                   6
