                                                                            FILED
                                                                            APR 28 2015
                            NOT FOR PUBLICATION                          MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS

                    UNITED STATES COURT OF APPEALS

                            FOR THE NINTH CIRCUIT


RAVINDER KUMAR,                                  No. 11-72077

              Petitioner,                        Agency No. A075-684-866

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

              Respondent.


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

                      Submission Deferred February 3, 2015
                           Submitted April 23, 2015**
                            San Francisco, California

Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.

      Petitioner Ravinder Kumar, a native and citizen of India, entered the United

States on a fraudulent K-1 fiancé visa and sought asylum. He now seeks review of

the Board of Immigration Appeals’ (“BIA”) decisions barring him from adjusting

        *
             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).
his status and dismissing his appeal of the Immigration Judge’s (“IJ”) denial of his

applications for asylum, withholding of removal, and Convention Against Torture

(“CAT”) protection. We have jurisdiction under 8 U.S.C. § 1252 and we deny the

petition for review.

      First, Kumar contends that he may adjust his status based on a relative

petition filed by his U.S. citizen father, notwithstanding § 245(d) of the

Immigration and Nationality Act (“INA”), which bars a K-1 visaholder from

adjusting his status on any basis other than marriage to the U.S. citizen who

petitioned on his behalf. 8 U.S.C. § 1255(d); see also 8 C.F.R. § 245.1(c)(6)

(barring a non-citizen who is “admitted” on a K-1 fiancé(e) visa from adjusting his

status unless he marries the sponsoring fiancé(e)). A K-1 visaholder is defined as

someone who enters the U.S. to marry a sponsoring U.S. citizen within ninety days

after “admission.” INA § 101(a)(15)(K), 8 U.S.C. § 1101(a)(15)(K). Kumar

argues that he is not a K-1 visaholder because he was never “admitted” as a K-1

visaholder. He was not admitted as a K-1 visaholder, he contends, because he was

procedurally admitted—he was inspected and authorized by an immigration officer

to enter—but he was never substantively admitted because he was not lawfully

privileged to enter, owing to his fraudulent K-1 visa.




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      Kumar’s ability to adjust his status, then, turns on whether the terms

“admission” in INA § 101(a)(15)(K) and “admitted” in 8 C.F.R. § 245.1(c)(6)

denote procedurally regular admission or substantively lawful admission. This is a

question of law that we review de novo. Shivaraman v. Ashcroft, 360 F.3d 1142,

1145 (9th Cir. 2004).

      We conclude that Kumar was admitted on a K-1 visa because INA §

101(a)(15)(K) and 8 C.F.R. § 245.1(c)(6) refer to procedurally regular admission.

This conclusion follows directly from our decision in Hing Sum v. Holder, 602

F.3d 1092 (9th Cir. 2010). In that case, we interpreted the general statutory

definition of “admitted” and “admission” in the INA to refer to procedurally

regular admission, not substantively lawful admission. Id. at 1096. There is no

reason to think that this general definition, set forth in INA § 101(a)(13)(A), 8

U.S.C. § 1101(a)(13)(A), does not control the meaning of “admission” in §

101(a)(15)(K) and “admitted” in § 245.1(c)(6). Those terms are not modified by

the term “lawful,” which has been read to denote substantively lawful admission.

See, e.g., Monet v. INS, 791 F.2d 752, 753-54 (9th Cir. 1986); In re Koloamatangi,

23 I&N Dec. 548, 551 (BIA 2003). In addition, adopting the procedural reading

advances the purpose of the adjustment bar, which is to reduce fraud in fiancé(e)




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visas. The procedural reading also accords with traditional notions of equitable

estoppel. See Hing Sum, 602 F.3d at 1101 (Graber, J., concurring).

      Because Kumar was admitted on a K-1 visa, he is barred from adjusting his

status based on his father’s petition. “Having enjoyed the benefits of” being a K-1

visaholder, Kumar “cannot now shed his skin for the purposes of seeking

beneficial relief.” Id. at 1093 (majority opinion).

      Second, Kumar contends that the agency erred in denying his applications

for asylum, withholding of removal, and CAT protection on the basis of the IJ’s

adverse credibility finding. We review these decisions for substantial evidence.

Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). Because this is a

pre-REAL ID case, we must uphold the agency’s adverse credibility determination

if it “is supported by substantial evidence and goes to the heart of [Kumar’s] claim

of persecution.” Rizk v. Holder, 629 F.3d 1083, 1087 & n.2 (9th Cir. 2011).

      We uphold the agency’s adverse credibility finding because it rests on a

“specific, cogent reason” that goes to the heart of Kumar’s claim. Li v. Ashcroft,

378 F.3d 959, 962 (9th Cir. 2004) (quoting de Leon-Barrios v. INS, 116 F.3d 391,

393 (9th Cir. 1997)). Kumar gave inconsistent answers in his asylum application

and hearing testimony about the dates and duration of two of his three detentions.

A reasonable fact finder could conclude that these discrepancies are relevant and

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significant. Id. They are relevant because they concern the extent to which Kumar

may have been abused by officials. And “[t]hese discrepancies are significant

because they concern [two] of the few interactions between [Kumar] and the

Punjabi police.” Kaur v. Gonzales, 418 F.3d 1061, 1067 (9th Cir. 2005). The

nine-month discrepancy concerning the date of Kumar’s third detention is

particularly glaring. Contrary to Kumar’s contention, the IJ and BIA meaningfully

considered, and rejected, his explanation for the inconsistent statements—that he

simply forgot due to the passage of time. Therefore, we conclude that substantial

evidence supports the agency’s adverse credibility finding, which in turn supports

the denial of Kumar’s applications for asylum and withholding of removal.

      Kumar argues that, even if we uphold the agency’s adverse credibility

finding, we cannot sustain the agency’s denial of his CAT claim. He contends that

the IJ relied on the adverse credibility finding with respect to his asylum

application to deny Kumar CAT protection, which we advised against in

Kamalthas v. INS, 251 F.3d 1279, 1284 (9th Cir. 2001), and Taha v. Ashcroft, 389

F.3d 800, 802 (9th Cir. 2004) (per curiam). It is true that the IJ and BIA relied on

the asylum-related adverse credibility to deny Kumar CAT protection. But this

was not error because, unlike in Kamalthas and Taha, the IJ and BIA did not rely

only on the adverse credibility finding. See Kamalthas, 251 F.3d at 1283; Taha,

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389 F.3d at 802. They also considered the documentary evidence Kumar

presented, which they correctly found fell short of the CAT standard. See

Almaghzar v. Gonzales, 457 F.3d 915, 922-23 (9th Cir. 2006).

      PETITION DENIED.




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