                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                            MAY 15 2014

                                                                          MOLLY C. DWYER, CLERK
RATTAN SINGH; KUAR SINGH                         No. 06-72689               U.S. COURT OF APPEALS

KAMAL,
                                                 Agency Nos.        A097-115-042
              Petitioners,                                          A097-115-043

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

              Respondent.



RATTAN SINGH; KUAR SINGH                         No. 10-70976
KAMAL,
                                                 Agency Nos.        A097-115-042
              Petitioners,                                          A097-115-043

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



RATTAN SINGH; KUAR SINGH                         No. 10-72585
KAMAL,
                                                 Agency Nos.        A097-115-042
              Petitioners,                                          A097-115-043


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                             Submitted May 12, 2014**
                              San Francisco, California

Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.

       Petitioners Rattan Singh and Kamal Kuar Singh, husband and wife, seek

review of the Board of Immigration Appeals’ (BIA) decisions: (1) adopting and

affirming the Immigration Judge’s (IJ) decision denying petitioners’ application for

asylum, withholding of removal, and protection under the Convention Against

Torture (CAT); (2) denying petitioners’ motion to reopen; and (3) denying

petitioners’ motion to reconsider. Because the parties are familiar with the facts

and procedural history of this case, we repeat only those facts necessary to resolve

the issues raised on appeal. We deny the petition for review.




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
      Rattan Singh alleges that he was persecuted in Fiji due to his Indian ethnicity

and support of the Fiji Labor Party. Kamal Kuar Singh did not file an individual

petition for asylum and merely seeks asylum as a derivative of her husband’s

application. For this reason, her claim must rise or fall with his. See Kumar v.

Gonzales, 439 F.3d 520, 521, 525 (9th Cir. 2006).

      On April 25, 2005, the IJ held a merits hearing, at which husband and wife

testified. The IJ made an adverse credibility determination, finding that each

petitioner’s testimony was internally inconsistent and inconsistent with the other’s

testimony. The IJ concluded that there was no credible evidence that the Singhs

were actually active in the Labor Party, or that the Singhs were persecuted on the

basis of their Indo-Fijian ethnicity or political participation. The BIA affirmed.

      Before this court, Rattan Singh concedes that the IJ’s adverse credibility

finding should not be disturbed with regard to his testimony. Nonetheless, Mr.

Singh argues that he is entitled to asylum based on his wife’s allegedly credible

testimony and certain documentary evidence, and that Mrs. Singh is entitled to

asylum as a derivative of his petition.

      Where there is substantial evidence to support an adverse credibility

determination, the petitioner must show that corroborating evidence overcomes the

agency’s credibility determinations. Garcia v. Holder, --- F.3d ---, 2014 WL


                                          3
1465699, at *5–6 (9th Cir. Apr. 16, 2014); Malhi v. I.N.S., 336 F.3d 989, 993 (9th

Cir. 2003). It is undisputed that Kamal Kuar’s testimony was materially

inconsistent with her husband’s with regard to incidents that go to the heart of

petitioners’ pre-REAL ID Act claim. Accordingly, her testimony only lends further

support to the IJ’s adverse credibility determination, and her testimony does not

overcome her husband’s lack of credibility. See Singh v. Holder, 643 F.3d 1178,

1182 (9th Cir. 2011); Kin v. Holder, 595 F.3d 1050, 1058 (9th Cir. 2010).

Additionally, while petitioners submitted newspaper articles describing a violent

incident at their home, these articles do show that the incident was the result of

persecution, and therefore, they cannot overcome Rattan Singh’s lack of credibility

with regard to his persecution claims.

      Lacking credible evidence of past persecution or a well-founded fear of

future persecution, Rattan Singh has not carried his burden to show that “no

reasonable factfinder could fail to find the requisite fear of persecution.” INS v.

Elias-Zacarias, 502 U.S. 478, 484 (1992). Because Mr. Singh is ineligible for

asylum, he fails to demonstrate eligibility for withholding of removal. See Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Mr. Singh’s claim for protection

under CAT fails because he has not provided credible evidence that it is more

likely than not that he will be tortured if he returns to Fiji. See Kamalthas v. INS,


                                           4
251 F.3d 1279, 1283 (9th Cir. 2001). Kamal Kuar’s claims also fail, because they

are derivative of her husband’s non-meritorious claims. Kumar, 439 F.3d at 521,

525.

       Finally, the BIA did not abuse its discretion in denying petitioners’ untimely

motion to reopen and motion for reconsideration. An untimely motion to reopen

may be filed only in the event of changed circumstances in the petitioner’s country

and only “if such evidence is material and was not available and could not have

been discovered or presented at the previous hearing.” 8 C.F.R. § 1003.2(c)(3)(ii);

see also INA § 240(c)(7)(C)(ii), 8 U.S.C. § 1229a(c)(7)(C)(ii). To be “material,”

the evidence must be of the type that, if the proceedings were reopened, “would

likely change the result in the case.” See Malty v. Ashcroft, 381 F.3d 942, 945 (9th

Cir. 2004). Petitioners merely submitted evidence that a new military regime in Fiji

has led to an increasingly unstable political climate. They did not provide new,

previously unavailable evidence concerning persecution of Indo-Fijians, nor did

they provide evidence that would undermine the IJ’s adverse credibility

determination with regard to Rattan Singh’s alternate claims of persecution.

       PETITION DENIED.




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