FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHWETA KOHLI, 

Petitioner, No. 05-72761

v. Agency No.  A79-610-568 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted December 8, 2006*

San Francisco, California

Filed January 17, 2007

Before: Thomas G. Nelson, Ronald M. Gould, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

*This panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

645
COUNSEL

Alan M. Kaufman of San Francisco, California, for petitioner

Shweta Kohli.

648 KOHLI v. GONZALES
Peter D. Keisler, Assistant Attorney General, John C. Cunningham, and Gregg M. Schwind of Washington, D.C., for

respondent Alberto R. Gonzales, Attorney General.

OPINION

CALLAHAN, Circuit Judge: 

Shweta Kohli, a native of Kuwait and a citizen of India,

seeks relief from removal arguing that the proceedings before

the Immigration Court should have been terminated because

the name and title of the issuing officer were not legible on

the Notice to Appear (“NTA”). She also contends that she is

entitled to withholding of removal and to relief under the

Convention Against Torture (“CAT”). We determine that the

alleged defect in the Notice to Appear is not jurisdictional.

We also conclude that the Immigration Judge’s adverse credibility determination is supported by substantial evidence and

that Kohli has not shown that she is entitled to either withholding of removal or relief under the CAT. 

I. Background

Kohli was born in Kuwait on October 13, 1980, of Indian

parents and is a citizen of India. Her parents were contract

workers in Kuwait and in 1990, during the Gulf War, the family moved back to India. In 1992, her parents returned to

Kuwait, but Kohli remained in India with her grandmother to

finish her schooling. 

Kohli testified that in 1996 while in school she became a

member of a human rights association which was interested

in human rights and particularly opposed the practices of sati1

1The New Oxford American Dictionary 1712 (2003) defines sati as “the

former Hindu practice of a widow immolating herself on her husband’s

funeral pyre.” 

KOHLI v. GONZALES 649
and dowry. Kohli attended meetings and made fliers. About

five months after she joined the association, she attended a

small rally of eight to ten people. The police came and told

them to stop and took down their school identification numbers, names and addresses. Kohli and her associates then dispersed. 

A month and a half later Kohli attended a bigger rally near

a supermarket with about fifteen members of the association.

They handed out flyers to about ten women. Again the police

came and told them to stop. Their leader said that they were

not doing anything wrong. The police, however, put the fifteen participants in their vehicles and took them to the police

station. At the police station the participants were kept

together in a waiting room and questioned separately. When

questioned, Kohli said she joined the association to bring

awareness to women about sati and dowry. She testified that

the police officer told her that these were cultural practices

and should not be changed. Kohli also testified that when she

was taken into the room for questioning, “when he took me

instead of telling me to sit down he actually took my shoulders and told me to sit down, pushed me down on the chair.”

Kohli was released after a couple of hours and called her

grandmother who then came and picked her up. 

Her grandmother was upset, called Kohli’s parents in

Kuwait, and suggested that they should take Kohli back to

Kuwait. Kohli explained that it was a really bad thing for an

Indian girl at the age of sixteen to be detained by the police.

Her parents talked to her on the phone and told her to come

back to Kuwait, but Kohli said she was happy in India. 

Some time after this, Kohli and other members of the association were in a park drawing flyers and planning for the

next rally. A single police officer approached the group. The

group leader explained that they were not doing a rally, just

planning for a future rally, and the police officer left. 

650 KOHLI v. GONZALES
Kohli testified that the police officer must have called her

grandmother because her grandmother told her that if she did

not stop going to the meetings, her parents would take her

back to Kuwait. A week later Kohli’s father came and took

her back to Kuwait. 

Kohli remained in Kuwait for nine months and then

returned to India for a month to put her affairs in order and

for a vacation. While in India, Kohli did not attend rallies, but

continued to do work for the association. She then returned to

Kuwait, stayed a month and a half, and then came to the

United States. 

Kohli entered the United States in 1997 as a visitor, intending to stay a month, but then decided to remain and attend

school. She graduated from high school in 1999. In February

2001, Kohli married a Pakistani citizen who had previously

been granted asylum in the United States. Kohli applied for

asylum in December 2001. In February 2002, the application

was rejected because she had not sought asylum within a year

of her arrival in the United States and had not demonstrated

that the delay was caused by extraordinary circumstances.

Kohli was served with a NTA charging her with being removable for remaining in the United States without authorization.

At her removal hearing, the Immigration Judge (“IJ”) determined that Kohli’s asylum application was time-barred

because it was submitted late and there were no exceptional

circumstances to justify the delay. Addressing the merits of

her requests for relief, the IJ concluded that Kohli’s testimony

was not credible and denied her application for asylum, withholding of removal, and relief under the CAT. The IJ further

noted, in the alternative, that even if Kohli was credible, the

police conduct she encountered did not rise to the level of persecution. 

The IJ based his determination on discrepancies between

Kohli’s declaration, her testimony, and the letter she submitKOHLI v. GONZALES 651
ted to verify her membership in the association. The IJ noted

that Kohli testified that all of her activities took place in New

Dehli, but the letter stated that she joined the association “in

Punjab” and that Kohli’s declaration stated that “while in

Chandigarth” she “took active part in protests against the discriminatory laws of TADA, that is the Indian anti-terrorist act,

that was designed to crush political activities from the Punjab.” He further noted that Kohli testified that she had only

been kept in the police station for a couple of hours, but her

declaration stated that she “was kept at the police station over

night and physically abused, degraded without committing

any crime.” Also, while Kohli testified to a single visit to a

police station, her declaration stated that she was taken to the

police station several times. 

In the course of the proceedings before the IJ, Kohli moved

to terminate the proceedings because the signature and title of

the issuing officer on the Form I-862 NTA were illegible. The

IJ denied the motion to terminate noting that (1) neither the

statute nor the regulation requires that the title of the issuing

officer be included on the NTA, (2) the argument was waived

by Kohli’s admission to the allegations in the NTA and concession of removability, (3) Kohli had not been prejudiced by

not knowing the identity of the issuing officer, and (4)

because there was no indication that the NTA was improperly

issued, the presumption of regularity attached. 

Kohli appealed to the BIA. The BIA agreed with the IJ that

Kohli had not demonstrated eligibility for asylum, had failed

to establish grounds for granting other forms of relief, and

otherwise affirmed the IJ’s decision based on the reasons set

forth therein, without further elaboration. 

Kohli filed a timely petition for review with this court. 

652 KOHLI v. GONZALES
II. The alleged defect in the Notice to Appear was not

jurisdictional

A. Petitioner’s contentions

Kohli argues that jurisdiction in a removal proceeding vests

when a NTA is filed with the Immigration Court. 8 C.F.R.

§ 1003.14. She contends that the contents of a NTA are carefully prescribed in 8 U.S.C. § 1229(a)(1),2

 citing Matter of GY-R, 23 I. & N. Dec. 181 (BIA 2001). Kohli asserts that 8

C.F.R. § 299.1 directs that the NTA must use Form I-862, and

that the form “requires the signature and title of the issuing

immigration officer.” Kohli claims that the party asserting

jurisdiction has the burden of proving all jurisdictional facts.

She then addresses the four reasons offered by the IJ for

denying her motion to terminate proceedings. In response to

the IJ’s observation that 8 U.S.C. § 1229(a)(1)(B) does not

require that the NTA indicate the title of the issuing officer,

Kohli asserts: 

The defect upon which the motion is based is not the

failure to indicate the title of the issuing officer, per

se. But rather, since the signature on the NTA is

illegible and the name and title of the official are not

indicated, the IJ is in no position to determine

whether he in fact has jurisdiction. 

Second, Kohli denies that she waived the issue, arguing that

a challenge to jurisdiction cannot be waived, citing CardenasUriate v. INS, 227 F.3d 1132 (9th Cir. 2000), and OliveraGarcia v. INS, 328 F.3d 1083 (9th Cir. 2003). Third, Kohli’s

answer to the IJ’s finding of no prejudice is that (a) prejudice

is not required where there is a lack of jurisdiction, and (b)

she did establish prejudice because the outcome would have

2All statutory references are to Title 8 of the United States Code unless

otherwise indicated. 

KOHLI v. GONZALES 653
been different, e.g., the proceedings would have been terminated. Finally, Kohli argues that the IJ’s invocation of the presumption of regularity improperly shifts the burden of

establishing jurisdiction from the government to her. 

B. Applicable legal standards

The sufficiency of the NTA is a question of law, which is

reviewed de novo. Lopez-Urenda v. Ashcroft, 345 F.3d 788,

791 (9th Cir. 2003) (holding that legal determinations by the

BIA and due process claims are reviewed de novo). 

[1] The process of removal is commenced by giving written

notice in person to the alien informing him or her of: 

(A) The nature of the proceedings against the alien.

(B) The legal authority under which the proceedings are conducted. 

(C) The acts or conduct alleged to be in violation

of law. 

(D) The charges against the alien and the statutory

provisions alleged to have been violated. 

8 U.S.C. § 1229(a)(1)(A)-(D). The actual removal proceeding

to determine the deportability or inadmissibility of an alien “is

commenced by the filing of a notice to appear with the immigration court.” 8 C.F.R. § 1239.1(a). A regulation further provides that this notice shall be given in accordance with 8

C.F.R. § 239, which authorizes a number of officials to issue

a NTA.3

3

8 C.F.R. § 239.1(a) reads: 

Issuance of notice to appear. Any immigration officer, or supervisor thereof, performing an inspection of an arriving alien at a

654 KOHLI v. GONZALES
[2] Thus, the issuance of a NTA pursuant to 8 C.F.R.

§ 239.1(a) does not create jurisdiction in the Immigration

Court. Rather, jurisdiction vests in the Immigration Court

“when a charging document is filed” with the Immigration

Court. 8 C.F.R. § 1003.14. See also 8 C.F.R. § 1239.1(a). Section 1003.14 requires a certificate showing service, but does

not suggest that there are any other jurisdictional requirements.4

port-of-entry may issue a notice to appear to such alien. In addition, the following officers, or officers acting in such capacity,

may issue a notice to appear: 

(1) District directors (except foreign); (2) Deputy district directors (except foreign); (3) Chief patrol agents; (4) Deputy chief

patrol agents; (5) Assistant chief patrol agents; (6) Patrol agents

in charge; (7) Assistant patrol agents in charge; (8) Field operations supervisors; (9) Special operations supervisors; (10) Supervisory border patrol agents; (11) Service center directors; (12)

Deputy service center directors; (13) Assistant service center

directors for examinations; (14) Supervisory district adjudications

officers; (15) Supervisory asylum officers; (16) Officers in

charge (except foreign); (17) Assistant officers in charge (except

foreign); (18) Special agents in charge; (19) Deputy special

agents in charge; (20) Associate special agents in charge; (21)

Assistant special agents in charge; (22) Resident agents in

charge; (23) Supervisory special agents; (24) Directors of investigations; (25) District directors for interior enforcement; (26) Deputy or assistant district directors for interior enforcement; (27)

Director of detention and removal; (28) Field office directors;

(29) Deputy field office directors; (30) Supervisory deportation

officers; (31) Supervisory detention and deportation officers; (32)

Directors or officers in charge of detention facilities; (33) Directors of field operations; (34) Deputy or assistant directors of field

operations; (35) District field officers; (36) Port directors; (37)

Deputy port directors; (38) Supervisory service center adjudications officers; (39) Unit Chief, Law Enforcement Support Center;

(40) Section Chief, Law Enforcement Support Center; or (41)

Other officers or employees of the Department or of the United

States who are delegated the authority as provided by 8 CFR 2.1

to issue notices to appear. 

4

8 C.F.R. § 1003.14 states, in relevant part: 

KOHLI v. GONZALES 655
[3] When presented with allegations that an agency has violated its own regulation, we have recognized that such a claim

is subject to judicial review, but have held that in order to be

granted relief “the claimant must show that he was prejudiced

by the agency’s mistake.” Patel v. INS, 790 F.2d 786, 788

(9th Cir. 1986). In United States v. Cerda-Pena, 799 F.2d

1374, 1377 (9th Cir. 1986), we reiterated:

This Circuit has held that a violation of an INS regulation does not invalidate a deportation proceeding

unless the regulation serves a purpose of benefit to

the alien. United States v. Rangel-Gonzales, 617

F.2d 529, 530 (9th Cir. 1980). In addition, even if

the regulation does not serve a purpose of benefit to

the alien, a violation of that regulation will not render a deportation unlawful unless the violation prejudiced the interests of the alien protected by the

regulation. [footnote omitted] Id. Thus, the violation

of an INS regulation will render a deportation unlawful if the regulation in question serves a purpose of

benefit to the alien and its violation prejudiced the

interests of the alien that it was intended to protect.

Id. 

See also United States v. Calderon-Medina, 591 F.2d 529,

531 (9th Cir. 1979) (holding that a claimant may only be

granted relief based on a violation of an INS regulation if “the

regulation serves a purpose of benefit to the alien” and “the

violation prejudiced interests of the alien which were protected by the regulation”).5

 The BIA has taken a similar

(a) Jurisdiction vests, and proceedings before an Immigration

Judge commence, when a charging document is filed with the

Immigration Court by the Service. The charging document must

include a certificate showing service on the opposing party pursuant to § 1003.32 which indicates the Immigration Court in which

the charging document is filed. 

5We recognize that there is some authority in other circuits that “when

a regulation is promulgated to protect a fundamental right derived from

656 KOHLI v. GONZALES
approach to alleged violations of immigration regulations.

Matter of Jorge Tadeo Carrera Hernandez, 21 I. & N. Dec.

224, 226 (BIA 1996) (“[T]his Board has consistently held that

the violation of a regulatory requirement invalidates a proceeding only where the regulation provides a benefit to the

alien and the violation prejudiced the interest of the alien

which was to be protected by the regulation”) (citing Matter

of Garcia Flores, 17 I. & N. Dec. 325 (BIA 1980)). 

C. Application of the legal standards to petitioner’s

contentions

Under the applicable case law, statutes and regulations it

appears that to be entitled to relief, Kohli must show that the

Immigration Court lacked jurisdiction or that she was prejudiced by the alleged defect in the NTA. We conclude that she

has failed to make either showing. 

Kohli’s argument that the Immigration Court lacked jurisdiction is not based on the regulations that provide the Immigration Court with jurisdiction, but on the underlying NTA

that issued pursuant to a separate regulation. In other words,

she does not contend that the government did not follow the

regulations that gave the Immigration Court jurisdiction, but

argues that an alleged defect in the NTA deprived the court

of jurisdiction. But in order to make a persuasive argument

that an alleged defect in the NTA compromised the Immigration Court’s jurisdiction, Kohli must show that the defect had

some impact on her rights. 

[4] Notwithstanding Kohli’s arguments, the NTA in this

case certainly provided her with all the information required

the Constitution or a federal statute, and the INS fails to adhere to it, the

challenged deportation proceeding is invalid and a remand to the agency

is required.” Waldron v. INS, 17 F.3d 511, 518 (2d Cir. 1994). We decline

to consider whether we should adopt such a standard because here the

alleged defect does not concern a regulation “promulgated to protect a

fundamental right.” 

KOHLI v. GONZALES 657
by 8 U.S.C. § 1229(a)(1)(A) through (D). It carried the heading “U.S. Department of Justice, Immigration and Naturalization Service,” and stated that the removal proceedings were

brought “under section 240 of the Immigration and Nationality Act.” The NTA fully informed Kohli of the charges

against her and directed her to appear before an IJ to show

why she should not be removed from the United States. 

[5] The name and title of the officer who issued the NTA

were not legible, but Kohli has not shown that these were

required by any statute or regulation. Kohli’s NTA was on a

Form I-862, as prescribed by 8 C.F.R. § 299.1. Kohli, however, has failed to trace the inclusion on Form I-862 of space

for the name and title of the issuing officer directly to any

statute or regulation. As Kohli has not shown that any statute

or regulation requires the inclusion of the name and title of

the issuing officer on the NTA, it follows that she has not

shown that the fact that the name and title on her NTA are

illegible constitutes a violation of a regulation. 

[6] The Immigration Court’s jurisdiction is also supported

by the well established principle of federal law that administrative agencies are entitled to a presumption that they “act

properly and according to law.” Federal Communications

Commission v. Schreiber, 381 U.S. 279, 296 (1965). “In the

absence of clear evidence to the contrary, courts presume that

public officers properly discharge their duties . . . .” County

of Del Norte v. United States, 732 F.2d 1462, 1468 (9th Cir.

1984) (citing 3 K. Davis, Administrative Law Treatise § 17.6

(2d ed. 1980) (quoting United States v. Chemical Foundation,

Inc., 272 U.S. 1, 14-15 (1926))). See also United States v.

Chemical Foundation, Inc., 272 U.S. 1, 14-15 (1926) (“The

presumption of regularity supports the official acts of public

officers, and, in the absence of clear evidence to the contrary,

courts presume that they have properly discharged their official duties.”) (internal citations omitted); see also INS v.

Miranda, 459 U.S. 14 (1982). 

658 KOHLI v. GONZALES
[7] Kohli’s claim that the invocation of the presumption of

regularity improperly shifted the burden of establishing jurisdiction onto her is not well taken. The government met its

burden of establishing jurisdiction in the Immigration Court

by issuing a NTA pursuant to 8 U.S.C. § 1229(a)(1), and then

filing that notice to appear with the Immigration Court. See 8

C.F.R. §§ 1003.14, 1239.1(a). Furthermore, Kohli admitted to

proper service, which is required by 8 U.S.C. § 1229(a)(1).

Thus, the presumption of regularity only comes into play

because Kohli challenges the government’s prima facie showing of jurisdiction. A presumption can be rebutted. Here, however, Kohli has not come forward with any evidence

indicating that the person who signed the NTA lacked the

authority to do so. Indeed, in light of the number of officials

that may sign a NTA pursuant to 8 C.F.R. § 239.1(a), it

appears that the decision to issue a NTA is not limited to the

discretion of highly placed officers, and it seems unlikely that

the official who signed the NTA was not authorized to do so.

Given the lack of any indication that the NTA was not properly issued, and the lack of any prejudice to Kohli, this court

may presume that the agency officials properly discharged

their official duties pertaining to the issuance of Kohli’s NTA.

[8] In addition, there is no evidence that Kohli was prejudiced by the alleged defect in the NTA. When Kohli appeared

before the IJ, she accepted service of the NTA, admitted the

factual allegations in the NTA, and conceded removability.

Furthermore, when she subsequently filed a motion to terminate proceedings before the IJ, she did not seek to withdraw

any of her concessions and admissions. She did not request

that the record be supplemented to clearly state the name and

title of the official who issued the NTA. Instead, she argued

only that the lack of a legible name and title deprived the IJ

of jurisdiction. Because Kohli has not shown, and on this

record cannot show, that the alleged defect obscured the

charges against her or obstructed her ability to respond to the

charges and present her requests for asylum and other relief,

the alleged defect was not prejudicial. 

KOHLI v. GONZALES 659
We further note that a careful reading of the case cited by

Kohli, Matter of G-Y-R-, 23 I. & N. Dec. 181 (BIA 2001),

supports our determination that the alleged defect in the NTA

was not jurisdictional, and also suggests the relationship

between jurisdiction and prejudice. In that case, the issue was

whether an IJ could order an alien removed in absentia when

the alien had never received notice of the removal hearing. Id.

at 183. In other words, the question was whether the IJ had

jurisdiction over the alien even though she was absent. The

BIA first determined that the agency had failed to properly

serve the alien with the NTA as required by the applicable

statutes. The BIA noted that the alien’s constitutional right of

due process of law required that she be provided with notice

of the proceedings and an opportunity to be heard. Id. at 186.

The BIA, however, then commented that even if the agency

failed to serve the alien as required by the statute, her constitutional right to notice could be met through a showing that

the alien received actual notice. Id. Because the alien had not

received actual notice, the BIA proceeded to consider a second statutory provision which would allow a finding that the

alien had received constructive notice. Id. at 187-90. The BIA

determined that the agency had failed to comply with the statutory requirements for establishing constructive notice, and

concluded that this failure, coupled with the alien’s failure to

receive actual notice, required a grant of relief. 

For our purposes, Matter of G-Y-R- has two critical holdings. The first is that the government’s failure to serve the

alien as required by the applicable statutes did not deprive the

IJ of jurisdiction. The IJ would retain jurisdiction if the

agency could show either that the alien had received actual

notice or that it had complied with the statutory provisions for

constructive notice. Since the government’s failure to comply

with a notice requirement in Matter of G-Y-R- did not automatically deprive the IJ of jurisdiction, it follows that in this

case the alleged defect in Kohli’s NTA does not automatically

deprive the Immigration Court of jurisdiction. 

660 KOHLI v. GONZALES
Second, in Matter of G-Y-R- the BIA’s determination that

the IJ lacked jurisdiction was based on the finding of a denial

of the constitutional right to due process of law because the

alien had not received actual or constructive notice of the proceedings. Accordingly, the alien was prejudiced because without notice she had no opportunity to respond to the charges

against her. In this case, the alleged defect in the NTA does

not implicate any constitutional right and did not prejudice

Kohli because it did not interfere with her understanding of

the charges against her or her ability to respond to those

charges. Thus, Matter of G-Y-R- supports our determination

that Kohli has failed to demonstrate that the alleged defect in

her NTA deprived the Immigration Court of jurisdiction.6

[9] We have reviewed the adequacy of the NTA de novo.

See Lopez-Urenda, 345 F.3d at 791. We conclude that the

agency complied with the regulations that vest jurisdiction in

the Immigration Court and that the alleged defect in the NTA

did not deprive the Immigration Court of jurisdiction. Our

conclusion is supported by our determinations that Kohli has

failed to demonstrate that (1) she did not have notice of the

charges against her, (2) the alleged defect was a direct violation of any applicable statute or regulation, (3) the presumption of regularity for agency action does not apply, and (4) she

was prejudiced by the alleged defect. Thus, Kohli has failed

to show that the alleged defect violated any regulation

intended to benefit her or that she was prejudiced by that violation. See Cerda-Pena, 799 F.2d at 1377. The IJ properly

denied Kohli’s motion to terminate the proceedings. 

6The other cases cited by Kohli are not applicable. Both CardenasUriate, 227 F.3d 1132, and Olivera-Gracia, 328 F.3d 1083, concerned

specific statutory limitations on the jurisdiction of this court to hear petitions to review certain deportation orders. Kohli has proffered no authority

that directly supports her claim that a defect in a NTA may deprive the

Immigration Court of jurisdiction. 

KOHLI v. GONZALES 661
III. Petitioner is not entitled to withholding of removal

or relief under the CAT.

A. Petitioner’s contentions

As Kohli admits that she is not eligible for asylum,7 her

credibility arguments concern only her requests for withholding of removal and relief under the CAT. Kohli attempts to

explain away the inconsistencies between her testimony and

her declaration. She claims that: (a) although she initially testified that she only participated in demonstrations concerning

human rights, she later clarified her testimony; (b) the person

who assisted her in preparing her declaration “mistakenly

understood her 5 hour detention to amount to being held over

night;” and (c) she was grabbed and pushed by the police officer and that the definition of torture is broad enough to

include such activity. She also explains that the association is

headquartered in Chandigarth, a city in Punjab, but that her

activities with the association took place in New Delhi. Kohli

admits that her testimony was inconsistent on some points,

but urges that the inconsistencies are minor and insignificant

in nature. 

B. Applicable legal standards

[10] In order to qualify for withholding of removal, an

applicant must demonstrate that it is more likely than not that

she would be subject to persecution based on one of the

grounds specified in 8 U.S.C. § 1101(a)(42)(A). Al-Harbi v.

INS, 242 F.3d 882, 888 (9th Cir. 2001). We have noted that

persecution is “the infliction of suffering or harm upon those

7The IJ found Kohli ineligible for asylum because she had failed to

apply for asylum within a year of arriving in the United States as required

by 8 U.S.C. § 1158(a)(2)(B), and because she had failed to establish

changed circumstances within the meaning of 8 U.S.C. § 1158(a)(2)(D).

Kohli recognizes that these findings are not subject to judicial review

under 8 U.S.C. § 1158(a)(3). 

662 KOHLI v. GONZALES
who differ (in race, religion or political opinion) in a way

regarded as offensive,” and “is an extreme concept that does

not include every sort of treatment our society regards as

offensive.” Mansour v. Ashcroft, 390 F.3d 667, 672 (9th Cir.

2004) (internal quotation marks and citations omitted). Relief

under the CAT, on the other hand, requires a showing “that

it is more likely than not that [the applicant] would be tortured

if removed to the proposed country of removal.” 8 C.F.R.

§ 208.16(c)(2). See also Kamalthus v. INS, 251 F.3d 1279,

1283 (9th Cir. 2001). 

Where the BIA reviews and incorporates the IJ’s decision,

we treat the incorporated parts of the IJ’s decision as the

BIA’s decision. Molina-Estada v. INS, 293 F.3d 1089, 1093

(9th Cir. 2002). We give deference to the IJ’s determination

of adverse credibility, and like any factual finding, it is “conclusive unless any reasonable adjudicator would be compelled

to the contrary.” 8 U.S.C. § 1252(b)(4)(B); Chebchoub v. INS,

257 F.3d 1038, 1042 (9th Cir. 2001) (“Chebchoub cannot prevail unless he demonstrates that any reasonable factfinder

would necessarily conclude that he is eligible for relief from

deportation.”). 

C. Application of the legal standards

[11] Kohli’s arguments notwithstanding, the IJ’s finding of

adverse credibility is substantially supported by the discrepancies between Kohli’s testimony, her declaration, and her letter

of membership. For example, Kohli’s declaration stated that

she had been “kept at the police station over night and physically abused,” but before the IJ she testified that she had only

been kept at the station for a couple of hours and the only

“abuse” was that an officer pushed her down into a chair.

Kohli’s attempt to divert blame to the person who helped her

prepare her declaration is not persuasive because Kohli is fluent in English and had no need for assistance in completing

her declaration. Also, as noted by the IJ, while the letter of

association membership stated that Kohli joined the associaKOHLI v. GONZALES 663
tion in Punjab, India, and was “victimized and jailed due to

her support and work on Human rights and relations and [sic]

Chandigarth-Punjab,” Kohli’s testimony before the IJ was all

about her activities in New Delhi, which is some distance

from Chandigarth. These inconsistencies are neither minor

nor insignificant, but are central to Kohli’s claim of past persecution and abuse. Accordingly, the inconsistencies support

the IJ’s finding of adverse credibility. See Guo v. Ashcroft,

361 F.3d 1194, 1201 (9th Cir. 2004) (reiterating that inconsistencies must go to the heart of an asylum claim to justify an

adverse credibility finding). As Kohli has not presented compelling evidence of her credibility, the IJ’s adverse credibility

determination should not be disturbed. 

We further note that even if the IJ’s adverse credibility

finding were suspect, we agree with his alternate finding that

accepting Kohli’s testimony as true, she has not shown a likelihood of persecution should she be returned to India. 

The IJ reasonably held:

the Court finds that even if [Kohli’s] testimony was

credible, what she experienced does not rise to the

level of persecution. According to [Kohli], she had

one brief detention of two or three hours in which

she was not mistreated. She was simply asked questions and then released. There was another occasion

in which the police told her to go home and stop rallying and she did. There was another occasion in

which the police called her grandmother and said

that they thought it was in her best interest to stop

participating with these activists. This strikes the

Court as not terribly different than the authorities in

the United States calling a parent or a grandparent in

this instance and suggesting that a child was hanging

around with the wrong crowd of people. This is certainly not a threat to [Kohli’s] life and freedom. 

664 KOHLI v. GONZALES
[12] Finally, regardless of whether Kohli’s version of her

treatment in India is credible or not, she has failed to demonstrate that there is any reasonable likelihood that she will be

tortured if returned to India. Accordingly, she is not entitled

to any relief under the CAT. 

IV. Conclusion 

Although the signature and title of the issuing official on

Kohli’s NTA were not legible, the IJ properly denied her

motion to terminate proceedings because she has not shown

that the alleged defect deprived the Immigration Court of

jurisdiction. Moreover, Kohli has not shown that the alleged

defect was contrary to a regulation designed to benefit her or

that she was prejudiced by the alleged defect. See CerdaPena, 799 F.2d at 1377. Also, our review of the record reveals

that the IJ’s adverse credibility determination was supported

by substantial evidence, and that Kohli has not shown that she

is entitled to withholding of removal, or relief under the CAT.

Accordingly, her petition for review is DENIED. 

KOHLI v. GONZALES 665