                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 15-1581
                                      ____________

                               OM PRAKASH CHHETRI,

                                                     Petitioner

                                             v.

           ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA,

                                                  Respondent
                                      ____________

                        On Petition for Review of a Final Order
                         of the Board of Immigration Appeals
                             (Agency No. A205-730-757)
                     Immigration Judge: Honorable Miriam K. Mills
                                    ____________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   January 20, 2016

       Before: JORDAN, HARDIMAN and GREENAWAY, JR., Circuit Judges.

                                 (Filed: January 20, 2016)

                                      ____________

                                        OPINION*


       *
        This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does
not constitute binding precedent.
                                       ____________



HARDIMAN, Circuit Judge.

       Om Prakash Chhetri petitions for review of an order of the Board of Immigration

Appeals (BIA) denying his application for asylum, withholding of removal, and

protection under the Convention Against Torture (CAT). Because the BIA’s order is

supported by substantial evidence, we will deny the petition.

                                              I

       Chhetri is a native and citizen of Nepal. He entered the United States in November

2012 without documentation and was detained by the Department of Homeland Security

(DHS). DHS charged Chhetri as removable under 8 U.S.C. § 1182(a)(7)(A)(i)(I) and he

conceded removability.

       Chhetri applied for asylum, withholding of removal, and relief under CAT. In

support of his application, Chhetri claimed that he fears returning to Nepal because he is

at risk of being harmed or killed by Nepalese Maoists. He testified as follows: In 2008, he

became a member of the Nepali Congress Party (NCP) and took active part in its political

efforts. As a result, he was targeted by Maoists who threatened to kill him if he did not

leave the NCP. Chhetri refused. Thereafter, he was twice beaten by Maoists and was

treated at a hospital. Chhetri reported the incidents to the police, but no action was taken




                                              2
because the Maoists were in power. At the behest of his parents, Chhetri fled to the

United States.

       As documentary support for his testimony, Chhetri submitted, among other things,

his Nepalese birth certificate, a letter from the NCP recognizing him as an active

member, a September 9, 2013 letter from Bir Hospital certifying that he was admitted on

April 28, 2011, a September 9, 2013 letter from Om Hospital certifying that he was

admitted on September 16, 2011, and a threatening letter from the Young Communist

League (YCL). Both hospital letters and the NCP letter were written only in English.

Although the letter from the YCL was translated from Nepali into English, it did not

contain a statement that the translator is competent in both languages as required by 8

C.F.R. § 1003.33.

       During removal proceedings, the Immigration Judge (IJ) questioned Chhetri. She

expressed concern that the hospital letters were written in English rather than Nepali and

that several of the translated documents were not properly certified. She also challenged

Chhetri’s testimony that he had personally received the Om Hospital letter at his house in

Nepal on the ground that the letter was dated September 9, 2013—almost a year after he

left Nepal for the United States. Chhetri altered his testimony in response, asserting that

his parents—not he—had received the letter.

       The IJ denied Chhetri’s application for two reasons. First, she “did not find

[Chhetri] to be credible.” App. 66. She based this finding on his “inherently improbable”

                                              3
testimony that he had personally received the Om Hospital letter at his house in Nepal in

September 2013 after he had admitted to leaving Nepal for the United States in October

2012. Id. Second, she found his documentary evidence unreliable and therefore

insufficient to corroborate his testimony. None of the documents “la[id] a reliable

foundation” to establish his identity, political party affiliation, or employment because

each document was either written only in English or was a translation that lacked proper

certification. App. 67. With respect to his CAT claim, she added a third reason—that,

“[i]n light of Nepal’s changed country conditions, [Chhetri did not establish] that he

would more likely than not, be specifically targeted for torture in Nepal, with government

complicity.”1 Id.

       The BIA found no clear error in the IJ’s reasoning and dismissed Chhetri’s

appeal. Regarding the IJ’s adverse credibility finding, the BIA agreed that the “serious

inconsistency” in Chhetri’s testimony about who had received the Om Hospital letter

“fatally undermined” his credibility. App. 3. As for the IJ’s finding that Chhetri’s

documentary evidence was unreliable, the BIA agreed that the fact that several of the

documents were written only in English was “suspicious” and noted that “the great

majority” of the documents “were not properly translated.” App. 4. The BIA concluded


       1
         The IJ also found that changed country conditions defeated Chhetri’s claims for
asylum and withholding of removal. Because the BIA expressly declined to reach that
alternative holding, we do not review it. See, e.g., Fiadjoe v. Att’y Gen., 411 F.3d 135,
152–53 (3d Cir. 2005) (explaining that we review only the BIA’s adverse credibility
finding except where the BIA “must have relied upon” the IJ’s analysis).
                                             4
that Chhetri’s persecution claim “lack[ed] veracity” and upheld the IJ’s denial of asylum

and withholding of removal. Id. It also summarily affirmed the IJ’s denial of CAT

protection. Chhetri timely petitioned for review.

                                              II

       The BIA had jurisdiction under 8 C.F.R. § 1003.1(b)(3). We have jurisdiction

under 8 U.S.C. § 1252(a). We review the BIA’s factual findings, including adverse

credibility determinations, for substantial evidence. Butt v. Gonzales, 429 F.3d 430, 433

(3d Cir. 2005). Accordingly, we will uphold factual conclusions “unless any reasonable

adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

We review the IJ’s findings under the same standard to the extent “the BIA directs us to

the [IJ’s] opinion and decision.” Yusupov v. Att’y Gen., 650 F.3d 968, 977 (3d Cir. 2011)

(quoting Shah v. Att’y Gen., 446 F.3d 429, 434 (3d Cir. 2006)).

                                              A

       Chhetri first argues that the BIA erred in upholding the IJ’s adverse credibility

determination. He claims his statement that he received the Om Hospital letter at his

house in Nepal was a misstatement and that the context provided by the rest of his

testimony reveals the mistake to be an honest one. Chhetri insists that it is clear that what

he meant to say was that he had seen a medication list, not the Om Hospital letter, as he

“clarified repeatedly” after realizing his error. Citing caselaw for the proposition that the

BIA is required to evaluate an applicant’s explanation for testimonial inconsistencies,

                                              5
see, e.g., Fiadjoe, 411 F.3d at 160, he contends that the BIA erred by not considering his

explanation and that any reasonable adjudicator would have been persuaded by it.

       We cannot say that any reasonable adjudicator would have found differently than

the IJ and the BIA. As an initial matter, the BIA considered Chhetri’s explanation when it

found “no clear error in [the IJ’s] finding that [Chhetri] did not reasonably explain th[e]

implausibility” in his testimony.2 App. 4. And what Chhetri calls “clarified” testimony

could reasonably be called “backtracking.” Chhetri wasn’t asked merely in passing

whether he had received medical records at his house in Nepal. Rather, he was twice

shown a copy of the Om Hospital letter and testified:

       Q:     And you’re telling me that that document you’ve seen before?

       A:     Yes.

       Q:     It was served to you at your house when you were in Nepal?

       A:     Yes.

       ...

       Q:     [Y]ou remember receiving that when you were in Nepal?

       A:     Yes.

App. 143, 146. Chhetri’s claim that he misidentified the document is hard to accept given

that he was looking at a copy of the Om Hospital letter when he twice identified it. In

       2
        For her part, the IJ confirmed that she “considered the arguments of both parties
and the entire record carefully” before deciding that Chhetri was “[unable] to explain” the
inconsistency in his testimony. App. 66.

                                              6
addition, he made no attempt to correct his testimony until the IJ pointed out the

inconsistency.

       In light of these facts, Chhetri’s credibility remained in doubt even after his

explanation. See Zheng v. Gonzales, 417 F.3d 379, 383 (3d Cir. 2005) (upholding the IJ’s

adverse credibility determination where the IJ was confronted with “inherently

implausible” testimony from “an applicant who contradicted himself” and presented “a

suspicious lack of credible corroboration”). We therefore find no error in the BIA’s

decision to uphold the IJ’s adverse credibility determination.

                                             B

       Chhetri next argues that the BIA erred in affirming the IJ’s conclusion that he

failed to independently corroborate his testimony through documentary evidence. He

focuses this argument on the BIA’s treatment of the English documents he submitted.3 He

contends that the IJ rejected all of these documents for either speculative reasons or no

reason at all. Most objectionably, Chhetri argues, the IJ speculated that the Om Hospital

letter would not have been written in English after he had explained that Nepali hospitals

routinely use English to write medical records, such as prescriptions. He then argues that

the BIA compounded the IJ’s error by using her shoddy reasoning to discount all of his

English documents.

       3
        During removal proceedings, counsel for Chhetri acknowledged that the
documentary evidence originally written in Nepali was not properly translated under 8
C.F.R. § 1003.33. Chhetri does not challenge the BIA’s treatment of those documents.

                                              7
       We cannot say that any reasonable adjudicator would have looked more favorably

on Chhetri’s English documents than the BIA. First, the IJ reasonably doubted the

veracity of the Om Hospital letter. The record supports her position that that letter could

be expected to be written in Nepali since that is the official language of Nepal and several

of Chhetri’s other documents were written in it. See Gabuniya v. Att’y Gen., 463 F.3d

316, 321 (3d Cir. 2006) (explaining that the record must reasonably ground presumptions

used to make adverse credibility findings in order to receive deference). These reasons

are broad enough to support the BIA’s application of the IJ’s presumption to all of

Chhetri’s English documents.

       Nor has Chhetri persuasively rebutted the presumption. The explanation he offered

as to why English was used instead of Nepali speaks only to the hospital letters and is

speculative itself. For example, during removal proceedings, he testified:

       Q:     Can you tell me why the [Om Hospital] letter is in English, written in the

              English language?

       A:     Most of Nepal’s hospitals administer the medication prescriptions in

              English and that’s why maybe they wrote the letter in English, too.

       ...

       Q:     Oh. Why would they write a prescription in English if that’s not the official

              language of the country?




                                             8
       A:     Perhaps the, the medicines are, medicines have English name[s] and they

              cannot be transcribed in Nepali and the reason could be that the doctors are

              foreign-educated and they write in English.

App. 147 (emphasis added).

       On appeal, Chhetri adds that because the letterheads on many of his documents are

written in English, it follows that English is widely used among Nepali institutions.

However, this fact could reasonably be viewed as a symptom of the same fundamental

infirmity—the use of English rather than Nepali gives reason to doubt the authenticity of

the letterheads.

       Of course, even if Chhetri’s explanation were plausible, his testimony would not

necessarily establish the reliability of the documents because he was found not credible.

Cf. Lusingo v. Gonzales, 420 F.3d 193, 199 (3d Cir. 2005) (noting that an applicant’s

credible testimony may support his claims where documentary evidence is lacking). We

therefore find no error in the BIA’s determination that Chhetri’s documentary evidence

was unreliable and not corroborative.

                                             C

       Chhetri’s final argument pertains to his CAT claim. He argues that any reasonable

adjudicator would conclude that the record shows “it is more likely than not” he will be

tortured if removed to Nepal. In support, he again offers testimony and documentary

evidence indicating that he was beaten by Maoists and hospitalized in the past, as well as

                                             9
a report issued by the United States State Department confirming that, in 2012, the

Nepalese police did not investigate certain incidents of violence involving Maoists for

fear of retribution.

       This argument can be rejected in short order. As an initial matter, the BIA’s

adverse credibility and reliability determinations—which doomed Chhetri’s asylum and

withholding of removal claims—bear on his CAT claim as well. This is because the BIA

affirmed the IJ on this issue “for the reasons she provided in her decision”, App. 5, and

the IJ found that Chhetri failed to establish a credible or corroborated claim “for any of

the requested relief”, App. 66. Furthermore, Chhetri’s objectively reliable evidence—

consisting entirely of the State Department report—falls far short of establishing that he

is likely to be tortured if removed to Nepal.

                                                III

       For the reasons stated, we will deny Chhetri’s petition for review.




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