FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VARUN GOEL, 

Petitioner,

No. 05-70298

v.  Agency No.

ALBERTO R. GONZALES, Attorney A78-638-722

General,

Respondent. 

VARUN GOEL, 

Petitioner, No. 05-74006

v. Agency No.  A78-638-722 ALBERTO R. GONZALES, Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

April 20, 2007—San Francisco, California

Filed June 14, 2007

Before: Mary M. Schroeder, Chief Circuit Judge,

Stephen S. Trott, Circuit Judge, and Gary A. Feess,*

District Judge.

*The Honorable Gary A. Feess, United States District Judge for the

Central District of California, sitting by designation. 

7199
Per Curiam Opinion

7200 GOEL v. GONZALES
COUNSEL

Martin Resendez Guajardo and Teresa Salazar, Law Office of

Martin Resendez Guajardo, San Francisco, California, for the

petitioner. 

Darcy Katzin and Lindsay L. Chichester, United States

Department of Justice, Washington, D.C., for the respondent.

GOEL v. GONZALES 7201
OPINION

PER CURIAM: 

Petitioner Varun Goel, a native and citizen of India, petitions for review of his final order of removal. He challenges

the adverse credibility finding in the Immigration Judge’s

decision that was summarily affirmed by the Board of Immigration Appeals. He also challenges the BIA’s later denial of

a motion to reopen that was supported primarily by polygraph

examination results. 

The case presents an issue of first impression regarding the

use of polygraph results in motions to reopen removal decisions. We agree with the BIA that polygraph evidence provides no adequate basis for reopening because it is not

evidence that was previously unavailable within the meaning

of the applicable regulation. 8 C.F.R. § 1003.2(c). Moreover,

in this case, the original negative credibility finding was supported by substantial evidence. We therefore deny the petition. 

BACKGROUND

Goel ascribes to the Nirankari faith, a minority religious

group in India. He claims to have been persecuted in India, on

account of his religious beliefs, by Sikh militants as well as

by police officials, all of whom are allegedly hostile to those

identifying as Nirankari. After entering the United States on

a nonimmigrant visa and overstaying its terms, Goel was

placed in removal proceedings. He conceded removability,

and applied for asylum, withholding of removal, and relief

under the Convention Against Torture. 

The IJ denied all applications for relief, primarily on the

basis of a negative credibility finding, concluding that Goel’s

testimony materially contradicted the documentary evidence

in several ways. For example, Goel testified that on one occa7202 GOEL v. GONZALES
sion, Sikh militants fired upon him and his family with heavy

rounds of ammunition in a drive-by shooting at their home. A

press report, however, submitted by Goel in support of his

application, was not consistent with Goel’s testimonial version of the event. The report described Goel and his father as

having been physically beaten outside their home. It described

the assailants as having fired into the air in a show of intimidation as they ran off to their vehicle. 

Goel also testified that he was not injured in the attack, but

this too was inconsistent with the press report’s version of the

incident, which described Goel and his father as having sustained injuries. When asked to explain these inconsistencies,

Goel responded only that the report was wrong. 

Goel further testified that he and his father were arrested

and tortured for several days by local police when they tried

to report the attack on their home. According to Goel’s testimony, the police beat his knees with sticks, forcibly stripped

him of his clothes, and ripped off patches of skin with a knife,

rendering him unconscious from the pain. This too contradicted the documentary evidence. A letter written by Goel’s

father and also submitted by Goel, described only a brief

period of humiliation and harassment, and did not mention

any torture, physical abuse, or lengthy confinement. 

The IJ noted all of these inconsistencies in making a negative credibility finding, observed Goel had a “tendency to

exaggerate,” and denied relief. The BIA summarily affirmed

without opinion, and Goel timely petitioned this court for

review. 

While the petition was pending, Goel filed a motion to

reopen pursuant to 8 C.F.R. § 1003.2(c)(1). The motion was

supported primarily by polygraph examination results going

to the veracity of Goel’s testimony before the IJ regarding the

torture in India. He claimed the polygraph report was evidence that was “not available” within the meaning of the

GOEL v. GONZALES 7203
applicable regulation’s provision that motions to reopen must

be supported by evidence “not available” earlier. 8 C.F.R.

§ 1003.2(c)(1). 

The only relevant questions and answers in the proffered

polygraph report were the following: 

(1) Have you lied about being tortured during your

two political arrests by the Amritsar Police? 

Answer: No. 

(2) Have you lied about being tortured during your

two arrests by the Amritsar Police, which is now

under investigation? 

Answer: No. 

(3) Is there any part of your claim of torture while

under two political arrests which is a lie? 

Answer: No. 

The examiner concluded he believed that Goel’s answers

were truthful. 

Goel also submitted a medical examination report. It concluded that the scars on his body “may be consistent” with the

torture Goel alleges he experienced. 

The BIA denied reopening concluding that Goel could not

show that either the polygraph evidence or the medical report

was previously unavailable, and could not have been discovered or presented at the IJ hearing. Goel timely petitioned this

court to review that denial as well as the removal order. Both

petitions have been consolidated and are now before the court.

7204 GOEL v. GONZALES
DISCUSSION

A. Motion To Reopen 

The novel issue in this case is whether polygraph examination results qualify as evidence that was “not available”

within 8 C.F.R. § 1003.2(c)(1), and thus may support a successful motion to reopen. We hold that polygraph evidence

may not. 

[1] Under 8 C.F.R. § 1003.2(c)(1), reopening is proper only

where the moving party can satisfy specific criteria. It provides: 

A motion to reopen proceedings shall not be granted

unless it appears to the Board that evidence sought

to be offered is material and was not available and

could not have been discovered or presented at the

former hearing[.] 

8 C.F.R. § 1003.2(c)(1). 

The key question, therefore, is whether the allegedly new

information was unavailable at the time of the movant’s hearing. If it was available or capable of being discovered at that

time, it cannot provide a basis for reopening. 

In Guzman v. INS, 318 F.3d 911 (9th Cir. 2003) (per

curium), for example, we held that the noncitizen’s discovery

that he mistakenly reported the wrong date of entry at his

deportation hearing could not provide the basis for reopening

because the allegedly “new information” about his entry date

“was available and capable of discovery prior to his deportation hearing.” Guzman, 318 F.3d at 913. By contrast, in Bhasin v. Gonzales, 423 F.3d 977 (9th Cir. 2005), we held that the

evidence offered in support of reopening was previously

unavailable because it concerned events that did not occur

until after the IJ hearing. Bhasin, 423 F.3d at 987. 

GOEL v. GONZALES 7205
[2] Here, the polygraph evidence that Goel offers concerns

events that allegedly occurred in India well before his IJ hearing. Goel was not in custody while awaiting his removal hearing, and was thus free to gather the evidence in support of his

applications for relief. The polygraph report is evidence that

could have been obtained at that time and that could have

been presented at his hearing to help resolve inconsistencies

in his own evidence. See Guzman, 318 F.3d at 913. Indeed,

Goel concedes that there was no reason why he could not

have secured a polygraph report between the time he was

released and the time he first appeared before the IJ. 

[3] The BIA also viewed the polygraph evidence as unreliable. Goel argues that the polygraph report constitutes

stronger evidence than his documentary evidence. According

to Goel, the report establishes the truth of his testimony that

in turn was based on first hand knowledge. As the Supreme

Court has explained, however, “there is simply no consensus

that polygraph evidence is reliable. To this day, the scientific

community remains extremely polarized about the reliability

of polygraph techniques.” United States v. Scheffer, 523 U.S.

303, 309 (1998). 

[4] Finally, even if reliable, the polygraph report could not

establish prima facie eligibility for asylum. At most, the polygraph test results establish that Goel’s fear of being persecuted is subjectively genuine. They do not establish or even

relate to the objective reasonableness of the fear. See Ladha

v. INS, 215 F.3d 889, 897 (9th Cir. 2000) (“To establish a

well-founded fear of persecution, petitioners must show their

fear to be both objectively reasonable and subjectively genuine.”). 

[5] We do not necessarily preclude the discretionary consideration of polygraph evidence by an IJ or the BIA at earlier

stages of a removal proceeding. But we do hold that polygraph evidence cannot serve as the basis for reopening under

8 C.F.R. § 1003.2(c). 

7206 GOEL v. GONZALES
[6] Also in support of his motion to reopen, Goel submitted

a medical report which explained that his scars are consistent

with the torture he claims to have experienced. Because this

report also concerns events that occurred well before the IJ

hearing, and there is also no reason why Goel could not have

obtained and presented this evidence to the IJ, this report cannot qualify as evidence that was previously unavailable either.

B. The Credibility Determination 

Goel challenges the IJ’s underlying adverse credibility

finding, contending it relies on minor inconsistencies that do

not go to the heart of his claim for relief. See Mendoza

Manimbao v. Ashcroft, 329 F.3d 655, 660 (9th Cir. 2003). The

inconsistencies were material because they bore on the key

issue of whether he suffered past persecution. Goel’s testimony was at odds with his own documentary evidence as to

the nature of the persecution. 

[7] We have held inconsistencies between testimonial and

documentary evidence to be a proper basis for an adverse

credibility finding. Wang v. INS, 352 F.3d 1250, 1258-59 (9th

Cir. 2003). Whether Goel was physically beaten or whether

he was fired upon, and whether he incurred actual injuries or

escaped unscathed were issues crucial to the IJ’s evaluation of

whether Goel had experienced persecution, and whether he

had any objectively reasonable fear of future persecution. The

adverse credibility finding was founded upon inconsistencies

that went to the heart of Goel’s claim. 

CONCLUSION

[8] Goel provided no adequate basis for reopening and the

IJ’s adverse credibility finding was supported by substantial

evidence. 

The petitions for review are DENIED. 

GOEL v. GONZALES 7207