NOT FOR PUBLICATION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 APPEALSPage 2 of 3

denial of his application s 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 coop erate. 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 hou rs. When asked about th e

inconsistenc ies 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 anPage 3 of 3

adverse credibility finding , p articularl y where the petitioner initially omi ts an event

that tells a more compelling story of persecution

. See Lai v. Holder , 773 F.3d 966,

971 (9th Cir. 2014).

Finally, t he adverse credibili ty 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, 10 41

– 42, 1045 (9th Cir.

2010).

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

removal claims fail.

2. S ubstantial 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 do es not compel the conclusion

that he is more likely than not to be tortured. See id. at 104 8

– 4 9

.

PETITION FOR REVIEW DENIED.