NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KRISHNA GURUNG, 

Petitioner, 

 v. 

MERRICK B. GARLAND, Attorney 

General, 

Respondent.

No. 15-72313 

Agency No. A205-540-904 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted November 17, 2021**

San Francisco, California

Before: WATFORD and FRIEDLAND, Circuit Judges, and KORMAN,*** District 

Judge.

Krishna Gurung, a native and citizen of Nepal, petitions for review of a

Board of Immigration Appeals (BIA) order upholding the immigration judge’s (IJ)

* 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 Edward R. Korman, United States District Judge for 

the Eastern District of New York, sitting by designation.

FILED

NOV 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
Page 2 of 3

 

denial of his applications for asylum, withholding of removal, and protection under 

the Convention Against Torture (CAT). We deny the petition for review. 

1. Substantial evidence supports the agency’s adverse credibility 

determination. First, Gurung offered inconsistent testimony regarding a February 

2011 incident. In his declaration, Gurung stated that, in February 2011, he found 

three Maoists waiting for him outside of his home who offered him a position in 

their party and warned him to cooperate. At the merits hearing, however, Gurung 

testified that members of the Maoist Party grabbed him while he was walking 

home from the village, forced him to walk 45 minutes to their commander’s office, 

and detained him at the office for two to three hours. When asked about the

inconsistencies between these two accounts, Gurung provided non-responsive 

answers, paused for an extended period, and then explained that he made a mistake 

in his declaration because his father was sick. It was not unreasonable for the 

agency to reject this explanation. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1186 

(9th Cir. 2016). 

Second, Gurung omitted any mention in his declaration of a threatening 

phone call he received in June 2009, but at the hearing Gurung testified that he 

received a 45-minute phone call from a Maoist during which he was threatened 

with death if he did not join the Maoist party. While omissions are generally less 

probative of credibility than inconsistencies, an omission may still support an 
Page 3 of 3

 

adverse credibility finding, particularly where the petitioner initially omits an event 

that tells a more compelling story of persecution. See Lai v. Holder, 773 F.3d 966, 

971 (9th Cir. 2014). 

Finally, the adverse credibility determination is also supported by the 

agency’s demeanor finding. We accord substantial deference to demeanor 

findings, where, as here, they are based on specific instances the agency identifies

in the record. See Shrestha v. Holder, 590 F.3d 1034, 1041–42, 1045 (9th Cir. 

2010). 

In the absence of credible testimony, Gurung’s asylum and withholding of 

removal claims fail. 

2. Substantial evidence also supports the agency’s determination that 

Gurung is not eligible for CAT protection. Gurung’s claim for relief is based on

the same testimony that the agency deemed not credible. While an adverse 

credibility finding does not necessarily defeat a claim for CAT relief, Gurung’s

highly generalized country conditions evidence does not compel the conclusion 

that he is more likely than not to be tortured. See id. at 1048–49. 

PETITION FOR REVIEW DENIED.