                                                                                 FILED
                            NOT FOR PUBLICATION                                  AUG 25 2011

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



                            FOR THE NINTH CIRCUIT


RAJBIR SINGH,                                    No. 07-73582

              Petitioner,                        Agency No. A075-318-004

  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 May 12, 2011
                             San Francisco, California

Before: GOODWIN and PAEZ, Circuit Judges, and O’GRADY, District Judge.**

       Rajbir Singh, a native and citizen of India, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration

judge’s (“IJ”) decision denying his application for political asylum and

withholding of removal, and his petition for relief under Article III of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Liam O’Grady, U.S. District Judge for the Eastern
District of Virginia, sitting by designation.
Convention Against Torture (“CAT”). Singh also appeals the BIA’s affirmance of

the IJ’s finding that he filed a frivolous asylum application.

      The IJ denied Singh’s present asylum application on the basis of adverse

credibility. We must accept an adverse credibility determination as long as it is

“supported by substantial evidence and goes to the heart of [Singh’s] claims.” Kin

v. Holder, 595 F.3d 1050, 1055 (9th Cir. 2010). Such a finding is overturned only

when any reasonable fact-finder would be compelled to do so. Singh v. Holder, ---

F.3d ----, 2011 WL 2207320 *2 (9th Cir. June 8, 2011).

      Singh applied unsuccessfully for asylum in 1992 and was removed to India.

He applied for asylum again when he returned to the United States in 1997. The IJ

found serious discrepancies between Singh’s first and second applications and also

in his testimony about an alleged arrest in India. Further, Singh failed to resolve

the discrepancies when he was given the opportunity by the IJ. Singh argues on

appeal that the inconsistencies could be explained by the involvement of his former

attorney. The IJ, however, concluded that the discrepancies were unrelated to the

involvement of Singh’s former attorney and that Singh was deliberately untruthful

in the present proceedings. We do not think any reasonable factfinder would be

compelled to reach the opposite conclusion. We therefore hold that substantial

evidence supports the IJ’s adverse credibility determination.


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      We review de novo whether the IJ complied with the procedural

requirements for a frivolousness finding. Yan Liu v. Holder, __ F.3d __, 2011 WL

1651244, at *4 (9th Cir. 2011). Among these procedural requirements, an IJ must

make a specific finding that the applicant knowingly filed a frivolous application.

In re Y-L-, 24 I. & N. Dec. 151, 155 (B.I.A. 2007). “[A]n asylum application is

frivolous if any of its material elements is deliberately fabricated.” 8 C.F.R. §

1208.20. The frivolousness finding must also be supported by a preponderance of

the evidence. In re Y-L-, 24 I. & N. Dec. at 158. The applicant must be warned of

the consequences of a frivolousness finding and must be given the opportunity to

account for any discrepancies or implausibilities in the application. Khadka v.

Holder, 618 F. 3d 996, 1002 (9th Cir. 2010).

      The IJ found that Singh had intentionally lied about an alleged arrest in India

that constituted part of the reason Singh sought asylum. The IJ concluded that

Singh’s story changed when the government presented him with conflicting

evidence about his prior testimony. Singh’s fabrication continued even after he was

warned of the consequences of filing a frivolous application. The IJ's finding that

Singh filed a frivolous asylum application is supported by a preponderance of the

evidence.




                                           3
      The denial of Singh’s CAT claim was in compliance with our existing case

law and was therefore proper. An adverse credibility determination in the asylum

context should not “wash over” a claim for CAT relief. Kamalthas v. I.N.S., 251

F.3d 1279, 1284 (9th Cir. 2001). In denying CAT relief, the IJ considered the

documentary evidence in the record about the relevant conditions in India at the

time that Singh was seeking asylum and did not rely merely on the adverse

credibility determination. Substantial evidence supports the IJ’s determination that

Singh did not present evidence that he would more likely than not be subject to

torture if removed to India.

      PETITION DENIED.




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