                                                                           FILED
                            NOT FOR PUBLICATION                            APR 15 2014

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



                            FOR THE NINTH CIRCUIT


SARFROZ KARIM MAKNOJIA,                          No. 09-72855

              Petitioner,                        Agency No. A099-468-201

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

              Respondent.


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

                             Submitted April 9, 2014**
                             San Francisco, California

Before: TALLMAN and CLIFTON, Circuit Judges, and DUFFY, District Judge.***


       Sarfroz Karim Maknojia, a native and citizen of India, petitions for review

of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from an

        *
             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).
        ***
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Immigration Judge’s (IJ) denial of his applications for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). “We review the

BIA’s findings of fact, including credibility findings, for substantial evidence and

uphold the BIA’s findings unless the evidence compels a contrary result.” Jie Cui

v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013) (citation omitted). Because

Maknojia submitted his asylum application after May 11, 2005, we also apply the

standards governing adverse credibility determinations under the REAL ID Act.

Shrestha v. Holder, 590 F.3d 1034, 1039S40 (9th Cir. 2010). We have jurisdiction

pursuant to 8 U.S.C. § 1252, and we deny the petition for review.

      Maknojia is not entitled to asylum. The IJ concluded, and the BIA agreed,

that Maknojia failed to establish that he filed his asylum application within one

year of his arrival in the United States. See 8 U.S.C. § 1158(a)(2)(B). He also

failed to show changed or extraordinary circumstances that would excuse his

delayed filing. See 8 U.S.C. § 1158(a)(2)(D). On appeal, Maknojia has expressly

abandoned any argument on this issue.

      Maknojia is also not entitled to withholding of removal because substantial

evidence supports the BIA’s conclusion that Maknojia did not testify credibly. The

IJ and BIA found that Maknojia’s testimony about his alleged 3-month captivity,

his treatment during captivity, and the manner in which he escaped, was vague.


                                          2
Maknojia blames the IJ for his vague responses, asserting that he was never asked

for additional details. But it is Maknojia—not the IJ or the government—who “has

the burden of proof to establish that [he] . . . satisfies the applicable eligibility

requirements.” 8 U.S.C. § 1229a(c)(4)(A)(i). Maknojia also tries to excuse his

vague testimony by arguing that being forced to beg in the streets of Bombay for

three months, after being knocked unconscious and kidnapped, “is not a reasonably

memorable experience.” This we doubt. Regardless, substantial evidence supports

the BIA’s conclusion.

       Maknojia also failed to present sufficient corroborating evidence to

substantiate his vague testimony. See Jie Cui, 712 F.3d at 1336 (“If the trier of fact

either does not believe the applicant or does not know what to believe, the

applicant’s failure to corroborate testimony can be fatal to his asylum application.”

(quoting Sidhu v. I.N.S., 220 F.3d 1085, 1090 (9th Cir. 2000))). Substantial

evidence supports the BIA’s conclusion that Maknojia could have provided a

sworn statement from his father, but did not. According to Maknojia’s testimony,

his father was either intimately involved with, or had personal knowledge of,

virtually every fact supporting his claim. Further, Maknojia had been in frequent




                                             3
contact with his father after leaving India. The corroborating evidence was

reasonably obtainable but not provided.1

      The BIA concluded in the alternative that Maknojia, even if found credible,

failed to establish past persecution or a well-founded fear of future persecution on

account of a protected ground. Maknojia and his father are Muslims. Mr.

Shrivastav, the landlord-antagonist, is Hindu. So too are the local police officers

involved in the alleged persecution of Maknojia. Maknojia insists that Shrivastav

would not have been able to persecute him, and get away with it, had Shrivastav

not been Hindu, like the local police. But Shrivastav’s ability to escape

prosecution says nothing about his motive to persecute Maknojia. And it is the

persecutor’s motive that informs our “on account of” inquiry. Parussimova v.

Mukasey, 555 F.3d 734, 739 (9th Cir. 2008). Substantial evidence supports the

BIA’s conclusion that Shrivastav persecuted Maknojia and his father over a

contract dispute, not because Maknojia is Muslim. This conclusion independently

precludes withholding of removal.



      1
         We note that, under the provisions of the REAL ID Act, the IJ could have
required reasonably obtainable corroborating evidence even if Maknojia had
testified credibly. See 8 U.S.C. § 1158(b)(1)(B)(ii) (“Where the trier of fact
determines that the applicant should provide evidence that corroborates otherwise
credible testimony, such evidence must be provided unless the applicant does not
have the evidence and cannot reasonably obtain the evidence.”).

                                           4
      Finally, Maknojia is not entitled to relief under the Convention Against

Torture. He did not convince the IJ that it is more likely than not he will be

tortured based on his father’s contract dispute with Shrivastav, and he has not

advanced a cogent argument on this point in his briefing on appeal.

      Petition for review DENIED.




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