                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 17 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



NAVNEET HUNDAL,                                  No. 06-73776

              Petitioner,                        Agency No. A079-578-642

  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 February 18, 2011
                             San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.**

       Navneet Hundal, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ (“BIA”) Burbano affirmance of an Immigration

Judge’s (“IJ”) decision terminating her asylum status due to a fraudulent asylum


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
application and denying her withholding of removal and protection under the

Convention Against Torture (“CAT”). Hundal also petitions for review of the

BIA’s denial of her motion to remand. We have jurisdiction under 8 U.S.C. § 1252

and we deny the petition.

      As a threshold matter, we decline to review Hundal’s argument that the IJ

abused her discretion in granting the government’s motion to reopen. The IJ

granted the government’s motion to reopen on August 6, 2004. Hundal did not

appeal that decision to the BIA. Although the BIA adopted and affirmed the IJ’s

April 21, 2005 decision, pursuant to Matter of Burbano, that decision addressed

only the issue of whether Hundal’s asylum application was fraudulent. Hundal

thus failed to exhaust her administrative remedies as to the government’s motion to

reopen. See Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008).

      Where an IJ reopens removal proceedings for the purpose of terminating a

grant of asylum, the government has the burden to prove, by a preponderance of

evidence, that “[t]here is a showing of fraud in the alien’s application such that . . .

she was not eligible for asylum at the time it was granted.” 8 C.F.R. § 208.24(a)(1)

& (f). We must uphold the IJ’s factual finding that the asylum application was

fraudulent “unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B).


                                            2
      There is substantial evidence to support the IJ’s finding that Hundal’s

asylum application was more likely than not fraudulent. Boota Basi, the person

who prepared Hundal’s asylum application, testified extensively about the process

by which he and his partner, Kashmir Malhi, created fraudulent asylum

applications. Basi gave a detailed account of how he had several templates of false

stories of which he would change certain biographical and background information

to specifically cater to each individual, and that none of the applications he

prepared, including Hundal’s, were true. The characteristics of Basi’s work that

reappeared in all of the applications he prepared were all apparent in Hundal’s

application. The IJ properly assessed Hundal’s testimony and considered Basi’s

credibility and any incentive he may have had to testify falsely, and determined

that Hundal was not entitled to asylum at the time it was granted. Because a

reasonable factfinder would not have been compelled to conclude otherwise, we

hold that substantial evidence supports the IJ’s finding that Hundal’s asylum

application was fraudulent. See I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1

(1992).

      An applicant who fails to satisfy the lower standard of proof for asylum

necessarily fails to satisfy the more stringent standard for withholding of removal.

See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Because Hundal did


                                           3
not present any new evidence in support of her CAT claim that was different from

her asylum claim, her CAT claim must also fail. Id. at 1157.

      The BIA properly denied Hundal’s motion to remand for adjustment of

status based on her marriage to a U.S. citizen that took place during her removal

proceeding. A motion to remand for adjustment of status will not be granted on

the basis of a marriage entered into during removal proceedings unless the

petitioner qualifies for the bona fide marriage exception. 8 U.S.C. § 1255(e); see

also Yepremyan v. Holder, 614 F.3d 1042, 1044 (9th Cir. 2010). To qualify for

this exception, the petitioner must present clear and convincing evidence indicating

a strong likelihood that her marriage is bona fide. Yepremyan, 614 F.3d at 1044-45

(citing In re Velarde-Pacheco, 23 I. & N. Dec. 253, 256 (BIA 2002)). In denying

her motion to remand, the BIA concluded that Hundal did not satisfy the

requirements set out in Velarde-Pacheco because Hundal failed to submit

sufficient evidence demonstrating a strong likelihood that her marriage is bona

fide. See also 8 C.F.R. § 204.2(a)(1)(iii)(B)(1)-(6) (listing the types of evidence

which tend to establish that the marriage is bona fide). The record supports the

BIA’s conclusion that Hundal failed to submit the types of evidence listed in

§ 204.2(a)(1)(iii)(B). Therefore, the BIA did not abuse its discretion in denying

Hundal’s motion to remand.


                                          4
Petition for review DENIED.




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