                              NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                              FOR THE NINTH CIRCUIT                        SEP 23 2014

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

MANJIT KAUR MAJOR; VARINDER                      No. 10-73111
SINGH,
                                                 Agency Nos.         A070-195-341
              Petitioners,                                           A071-614-138

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

              Respondent.


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

                             Submitted September 9, 2014**
                               San Francisco, California

Before: REINHARDT, GOULD, and BERZON, Circuit Judges.

       Manjit Kaur Major (“Major”) and her son Varinder Singh, natives and

citizens of India, petition for review of the Board of Immigration Appeals (“BIA”)

decision affirming an immigration judge’s (“IJ”) denial of their applications for


        *
             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).
adjustment of status, asylum, withholding of removal, protection under the

Convention Against Torture (“CAT”), and motion to remand. Major1 raises the

following issues on appeal: (1) whether the BIA erred in denying Major’s

adjustment of status applications based on her marriages to Mr. Jimmy Major

(“Mr. Major”) and Mr. Madanjit Nijjar (“Nijjar”); (2) whether substantial evidence

supports the BIA’s denial of Major’s asylum application; (3) whether substantial

evidence supports the BIA’s denial of Major’s CAT relief; and (4) whether the

BIA abused its discretion in denying Major’s motion to remand.

                                          I

      Major contends that the BIA erred in denying her adjustment of status

application based on her marriage to Mr. Major because Mr. Major’s death after

marriage did not deprive her of eligibility to adjust status, and because the DHS

misguided her in connection with the withdrawing of her application. We reject

this argument for several reasons. The BIA did not deny Major’s application

because Mr. Major died, but because Major withdrew her application and admitted

that her marriage was purely for the purpose of obtaining her legal permanent

residency. Also, Major’s argument that the DHS misguided her into withdrawing



      1
          We only address Major’s eligibility for relief, because Varinder Singh’s
relief solely derives from his mother Major’s applications.

                                          2
her application was not raised before the IJ or in her opening brief before the BIA.

We do not have subject matter jurisdiction to consider a claim not properly raised

in administrative proceedings. Serrano v. Gonzales, 469 F.3d 1317, 1319 (9th Cir.

2006).

      Major is ineligible to adjust status based on her later marriage to Nijjar,

because INA § 245(d) bars her from adjusting status on any basis other than

marriage to the United States citizen who petitioned for her K-1 visa. Choin v.

Mukasey, 537 F.3d 1116, 1119 n.4 (9th Cir. 2008) (“There is no question that the

plain language of [INA § 245(d)] bars K visaholders from adjusting to permanent

resident status on any basis other than the marriage to the citizen who petitioned on

their behalf.”). The BIA did not err in denying Major’s adjustment of status

applications.

                                          II

      Major contends that the BIA’s “adverse credibility finding or [Major’s]

alleged incoherency is not supported by substantial evidence.” Where, as here, the

BIA has affirmed the IJ’s findings of fact and added comments of its own, we

review both decisions. Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir.

2011). Normally, we review an adverse credibility finding for substantial

evidence. Jiang v. Holder, 611 F.3d 1086, 1091 (9th Cir. 2010). However, our


                                          3
precedent is clear that an adverse credibility determination must be explicit, not

implicit. Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 658–59 (9th Cir. 2003)

(holding that the IJ must make explicit credibility findings); Shoafera v. INS, 228

F.3d 1070, 1074 n.3 (9th Cir. 2000) (“[T]he law of this circuit does not permit

implicit adverse credibility determinations.”); Aguilera-Cota v. INS, 914 F.2d

1375, 1383 (9th Cir. 1990) (“The mere statement that a petitioner is ‘not entirely

credible’ is not enough.”). Here, we do not read the IJ’s decision or the BIA’s

decision as making any explicit adverse credibility determination. As the BIA

stated:

      The Immigration Judge noted the multiple significant discrepancies
      and material inconsistencies in the record, between the testimony, the
      applications, and the other documentary evidence. The Immigration
      Judge determined that the asylum claims were incoherent, and he was
      not sure what to believe, due to the significant discrepancies and
      inconsistencies and the inability of the respondents to adequately
      explain the discrepancies in the record. We affirm the Immigration
      Judge’s decision.

      Several aspects of in Major’s proof rendered her asylum claim incoherent.

First, Major’s membership of the Akali Dal party is a key to her asylum claim, but

her written application and testimony conflict on whether she was a member.

Major’s written application said that she “became a member of the party” on April

13, 1990, but contrary to that statement, she testified that she was not a member.



                                          4
At the end of the hearing, the IJ gave Major adequate opportunities to explain this

inconsistency, but she was unable to do so.

      Second, the theme of Major’s political persecution story shifted between her

written application and her testimony. Her written application stressed that she

was a member of the Akali Dal party and was persecuted because of her political

activities. But at the hearing, her story shifted to focus on Satwant Singh. Major’s

deceased first husband was Harjit Singh (“Singh”), and his brother-in-law was

Satwant Singh, who allegedly assassinated Prime Minister Indira Gandhi. The

name Satwant Singh did not appear in Major’s written application, but became the

focus of her persecution story at the asylum hearing. If Major’s arrest was because

of her family connection to Satwant Singh, it is incomprehensible why she did not

even mention Satwant’s name in her written application. Major’s new story about

Satwant Singh also was incoherent, as the IJ found. Major stated that Singh went

out for gatherings with Satwant in 1990, but on cross-examination, the DHS’s

counsel asked how Satwant could go out with Singh in 1990 if Satwant was

hanged before 1990. Major then changed her testimony stating that others from

the party used to go by Satwant’s name. But Major had confirmed earlier that the

Satwant Singh whom Singh went out with was the Satwant Singh who killed Prime

Minister Gandhi.


                                          5
      Third, Major and her deceased husband Singh’s father Avtar Singh were

unable affirmatively to testify whether it was militants or the police who killed

Singh. In sum, substantial evidence supports the BIA’s determination that Major’s

asylum claims were incoherent.

                                         III

      The government argues that Major did not exhaust her CAT claim because

Major “merely asserted in the first paragraph” of her brief before the BIA that she

appeals the IJ’s denial of her CAT relief. We have previously held that a CAT

claim is exhausted as long as a petitioner mentions his or her CAT claim in the

brief, because the BIA is on notice that the petitioner is challenging the IJ’s CAT

determination. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); Zhang v.

Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004). Here, Major mentioned in her brief

that she was challenging the IJ’s denial of her asylum under CAT, so Major has

exhausted her CAT claim.

      The government also argues that Major waived her CAT challenge on appeal

before us because she did not make any arguments that she met the burden of proof

in her opening brief. Although Major’s arguments in support of her CAT claim

were sparse, she did argue that she was eligible for CAT relief in her opening brief.

We conclude that Major did not waive her CAT claim.


                                          6
      We turn to the merits of Major’s CAT claim. To be eligible for withholding

of removal under CAT, an applicant must prove that “he [or she] is more likely

than not to suffer intentionally-inflicted cruel and inhuman treatment” in the

country of removal. Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005)

(citation omitted). CAT claims are “analytically separate from claims for asylum

under INA.” Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001). In

determining an immigrant’s eligibility for CAT relief, the BIA shall consider “all

evidence relevant to the possibility of future torture.” 8 C.F.R. § 1208.16(c)(3).

      Here, the BIA was silent as to its reason for denying Major’s CAT relief.

When the BIA is silent as to its reason for denying a CAT claim, we look to the

IJ’s opinion “as a guide to what lay behind the BIA’s conclusion.” Afriyie v.

Holder, 613 F.3d 924, 937 (9th Cir. 2010) (internal quotation marks and citation

omitted). Here, the IJ denied Major’s CAT claim for the same reason that he

denied her asylum and withholding of removal claims: numerous significant

discrepancies between Major’s application, testimony, and the documentary

evidence rendered her claim incoherent. Moreover, although the evidence relating

to Major’s asylum and CAT claims substantially overlap, the IJ did consider

evidence specifically relating to Major’s CAT claim, including India’s country

conditions that the IJ referred to as “general background materials the purpose of


                                          7
which is to provide context for Ms. Kaur’s claims.” Cf. Kamalthas, 251 F.3d at

1284 (granting petition for review because the BIA failed to consider relevant

country conditions). We are unable to find that this evidence “compel[s] a

different conclusion from the one reached by the BIA.” Zheng v. Holder, 644 F.3d

829, 835 (9th Cir. 2011). Because the IJ has considered all relevant evidence

relating to Major’s CAT claim, and because nothing in the record compels us to

reverse the IJ’s denial of Major’s CAT relief, we deny the petition with respect to

this claim.

                                         IV

      Major finally contends that the BIA erred in denying her motion to admit

new evidence. Major’s motion for the IJ to consider new evidence is a motion to

reopen. Oyeniran v. Holder, 672 F.3d 800, 808 (9th Cir. 2012). A motion to

reopen filed while an alien’s removal proceeding is on appeal before the BIA will

be treated as a motion to remand the proceedings to the IJ. 8. C.F.R.

§§ 1003.2(b)(1) and (c)(4); Movsisian v. Ashcroft, 395 F.3d 1095, 1097 (9th Cir.

2005). We review the BIA’s denial of a motion to remand for abuse of discretion.

Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002).

      Here, the BIA did not abuse its discretion in denying Major’s motion to

remand because she did not show that the previously unavailable evidence could


                                          8
not have been discovered or presented at the former hearing. INS v. Doherty, 502

U.S. 314, 324 (1992); see also Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.

2010). All events described in the new evidence took place before Major’s asylum

hearing on December 11, 2008, and Major gave no explanation of why she could

not have submitted the new evidence before her asylum hearing. The BIA has

broad discretion in denying remand motions. INS v. Abudu, 485 U.S. 94, 108

(1988). We conclude that the BIA did not abuse its discretion in denying Major’s

motion to remand.

      PETITION DENIED.




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