NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GANESH GAUTAM,

Petitioner,

v.

WILLIAM P. BARR, Attorney General,

Respondent. No. 18

- 71657

Agency No. A089

- 313

- 544

MEMORANDUM *

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

Submitted September 14, 2020 * *
San Francisco, California

Before: BADE and BUMATAY, Circuit Judges, and MÁRQUEZ, ** * District Judge.

Ganesh Gautam petitions for review of the Board o f Immigration Appeals

(BIA) order dismissing his appeal from an Immigration Judge’s (IJ) denial of his

* 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 Rosemary Márquez, United States District Judge for the District of Arizona, sitting by designation. 

# FILED

SEP 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS2

applications for asylum and withholding of removal. We review the agency’s

factual findings for substantial evidence. Garcia

- Milian v. Holder , 755 F.3d 1026,

1031 (9th Cir. 2014). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the

petition for review.

1. Credibility determinations are based on the “ totality of the

circumstances, and all relevant factors,” including “the consistency between the

applicant ’s

. . . written and oral statements.” 8 U.S.C. § 1158(b)(1)(B)(iii)

(asylum); 8 U.S.C. § 1231(b)(3)(C) (withholding of removal). When evaluating

discrepancies between statements, “an omission may form the basis for an adverse

credib ility finding.” Lai v. Holder , 773 F.3d 966, 971 (9th Cir. 2014).

S ubstantial evidence supports the determination that Gautam was not

credible as to his testimony about a March 2008 encounter with the Maoists.

Gautam testified that a gun was held to his head during that incident

, but he

omitted any mention of a gun in connection with that incident in the declaration

supporting his asylum application . This was a material detail that changed the

nature of the encounter and was more favorable to his pos ition

. See Zamanov v.

Holder , 649 F.3d 969, 973

- 74 ( 9th Cir. 2011)

.

T he o nly explanation Gautam provided f or th at omission was that he “didn’t

know” that he needed to include it. In contrast, Gautam’s declaration mentioned a

gun in connection with a February 2008 incident. Because these factors3

undermined Gautam’s credibility, substantial evidence supports the adverse

credibility determination and the BIA’s determination that Gautam failed to show

past persecution

.

2

. T his court lacks jurisdiction to consider Gautam’s claim that the IJ

failed to undertake an individualized determination of his well

- founded fear of

future persecution because Gautam did not exhaust that claim

, and the BIA could

have remedied the alle ged error

. See Barron v. Ashcroft , 358 F.3d 674, 677

- 78

(9th Cir. 2004)

.

3

. Additionally , s ubstantial evidence supports the determination that

Gautam could safely and reasonably relocate within Nepal. See 8 C.F.R.

§§ 1208.13(b), 1208.16(b) ; see also Gonzalez

- Hernandez v. Ashcroft , 336 F.3d

995, 999 (9th Cir. 2003)

.

Petitioner’s motion for judicial notice is denied.

PETITON DENIED.