NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BISHNU MAYA GURUNG, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 20-71535 

Agency No. A096-874-486 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted May 4, 2021**

Seattle, Washington

Before: CHRISTEN and BENNETT, Circuit Judges, and FRIEDMAN,*** District 

Judge.

Bishnu Maya Gurung, a native and citizen of Nepal, seeks review of a

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 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 Paul L. Friedman, United States District Judge for the 

District of Columbia, sitting by designation.

FILED

MAY 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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decision of the Board of Immigration Appeals (BIA) dismissing her appeal from an 

Immigration Judge’s (IJ) order denying her applications for asylum, withholding of 

removal, and protection under the Convention Against Torture (CAT). We have 

jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition.

We review the agency’s legal determinations de novo and factual findings 

for substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). 

We will uphold the agency’s decision if it is “supported by reasonable, substantial, 

and probative evidence on the record considered as a whole.” Tampubolon v. 

Holder, 610 F.3d 1056, 1059 (9th Cir. 2010). When making credibility 

determinations, IJs are accorded “substantial deference” because they “are in the 

best position to assess demeanor and other credibility cues that we cannot readily 

access on review.” Shrestha v. Holder, 590 F.3d 1034, 1041–42 (9th Cir. 2010). 

“[O]nly the most extraordinary circumstances will justify overturning an adverse 

credibility determination.” Id. at 1041.

1. IJs must “provide ‘specific and cogent reasons’ in support of an 

adverse credibility determination.” Id. at 1043 (citation omitted). “When an 

inconsistency is cited as a factor supporting an adverse credibility determination, 

that inconsistency should not be a mere trivial error such as a misspelling . . . .” Id.

at 1044. Here, the IJ identified three specific and cogent reasons to support the 

adverse credibility determination: (1) petitioner unreasonably failed to testify 
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concerning a serious incident of harm that she had included in her declaration; 

(2) petitioner implausibly testified that although she was extremely politically 

active in Nepal, she was not politically active at all in the United States; and (3) 

while testifying, petitioner frequently failed to directly respond to questions and 

tended to give evasive and nonresponsive answers.

First, the inconsistency identified by the IJ was not trivial. See Kaur v. 

Gonzales, 418 F.3d 1061, 1064 (9th Cir. 2005) (collecting examples of 

“non-material, trivial” inconsistencies). The incident that petitioner excluded from 

her testimony significantly corroborates her testimony about other incidents of 

harm, and petitioner included it in her declaration. The fact that petitioner’s 

omission weakened her claim does not preclude the IJ from considering it in the 

credibility determination. See id. at 1065. Second, the IJ properly considered the 

plausibility of petitioner’s testimony regarding her political activity and found it 

implausible that petitioner testified that she was extremely politically active in 

Nepal, while not engaging in any political activity in the United States. See Yali 

Wang v. Sessions, 861 F.3d 1003, 1008 (9th Cir. 2017) (quoting 8 U.S.C. 

§ 1158(b)(1)(B)(iii)) (stating that IJs may base a credibility determination on “the 

inherent plausibility of the applicant’s or witness’s account”). Third, the IJ

provided a “cogent explanation of the specific aspects of the petitioner’s demeanor 

that detracted from . . . her credibility.” Lizhi Qiu v. Barr, 944 F.3d 837, 843 (9th 
4 

Cir. 2019). We conclude that substantial evidence supports the IJ’s adverse 

credibility finding.

2. “To qualify for asylum, a petitioner must establish that he or she . . .

‘is unable or unwilling to return to, and is unable or unwilling to avail himself or 

herself of the protection of, [his or her] country because of persecution or a 

well-founded fear of persecution on account of’ a protected ground.” 

Cortez-Pineda v. Holder, 610 F.3d 1118, 1124 (9th Cir. 2010) (citations omitted). 

In the absence of petitioner’s credible testimony, we conclude that the remaining 

evidence in the record, including a doctor’s letter and a declaration from 

petitioner’s mother, is insufficient for petitioner to meet her burden of establishing 

past persecution or a well-founded fear of future persecution. See Gu v. Gonzales, 

454 F.3d 1014, 1021 (9th Cir. 2006); Garcia v. Holder, 749 F.3d 785, 792 (9th Cir. 

2014).

3. “To demonstrate eligibility for withholding of removal, the petitioner 

must show a clear probability of the threat to life or freedom if deported to his or 

her country of nationality.” Lianhua Jiang, 754 F.3d 733, 740 (9th Cir. 2014) 

(citation and internal quotation marks omitted). “The clear probability standard is 

more stringent than the well-founded fear standard for asylum.” Id. (citation

omitted). Because petitioner cannot meet her burden for asylum, she similarly 

cannot meet her burden for withholding of removal. See id.
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4. To be eligible for CAT protection, petitioner must “establish that it is 

more likely than not that . . . she would be tortured if removed to the proposed 

country of removal.” 8 C.F.R. § 208.16(c)(2). In the absence of petitioner’s 

credible testimony, we conclude that the remainder of the evidence in the record—

including country reports and a declaration from petitioner’s mother—is 

“insufficient to compel the conclusion that Petitioner would be tortured if 

returned” to Nepal. Lianhua Jiang, 754 F.3d at 740 (emphasis in original).

PETITION DENIED.