NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 13a0472n.06 No. 12-3760 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

KHI M L AL GHIMI RE; PAVI TRA GHI MI RE; ROSHAN GHI MI RE; ARJ UN GHI MI RE, Petitioners,

v. ERI C H. HOL DER, J R., Attorney Gene ral, Respondent. ) ) ) ) ) ) ) ) ) ) ) ON PETI TI ON FOR REVI EW O F T H E B O A R D O F I MMI GRATI ON APPEAL S

BEF ORE: ROGERS, W HI TE, and AL ARCÓN, Circuit J udg es. * ROGERS, Circuit J udg e. The Ghimires p et i t i o n fo r review of a decision by the Boa rd of I mmigra tion Appea ls deny ing t h ei r ap p l ications for relief and aff irming the decision of the immigra tion judge. T hey seek withholding of re moval under 8 U .S.C. § 1231(b)(3). The hear t of the Ghimires’ claim is an alleg ation that Maoists threa tened Mr. Gh i m i re due to his party membership or political opinions. The immigra tion judge made adver se cre dibilit y deter minations reg arding the Ghimires’ testimony

. The Boa rd proper ly upheld the immigra t i o n judge ’s decision becaus e s ubstantial evidenc e supports the immigra tion judge ’s adver se cre dibilit y deter minations and the Ghimires have not otherwise provided enoug h evidenc e to support withholding of remova l.

The Honora

ble Arthur L

. Alarc ón, United States Senior Circuit J udg e for the United States * Court of Appea ls for the Ninth Circuit, sitting by desig nation.No. 12-3760

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The Ghimire family consists of husband Khim L al Ghimire, wife Pavitra Ghimire, and two minor child re n , R oshan Ghimire and Arjun Ghimire, ag es fiftee n and thirteen respe ctively

. The Ghimires are n atives and citizens of Nepal. Acc ording to Mr. Ghim ire, while in Nepa l, he joi ned the Nepa li Co n gress Party , which seeks to establish democr acy in Nepa l. Mr. Ghimire said that althoug h he never ran for office , he volunteere d for the party during elec tions and was a well-known leade r in his village of 15,000 to 20,000 people. Mr. Ghimire t es t i fi ed that on or about Dec ember 25, 2000, two members of the Maoist Communi st Party appea

red at his home and asked Mr. Ghimire for a larg e donation, telling him that if he did not donate to the Maoist party , he might have “proble ms.” Mr. Ghimire claimed that two day s later, a g roup of twe nty to twenty -five pe ople ar

med with g uns and knives came to his house in the night. The g roup demande d that he join the Maoist party becau s e t h ey believed that Mr. Ghimire’s followers would then also join the Maoist party

. Mr. Ghim ire said he was told that the Maoists kill people that do not joi n their party

. The Maoists demande d a larg e amount of m oney , but ga ve Mr. Ghimire one we ek to collec t it. Mrs. Ghimire’s rec ollection of t he event was differe nt in important respe cts. She claimed that more than a hundred Maoists came to the Ghimires’ house and that Mr. Ghimire’ s l egs wer e injured with some small cuts when he fell down beca use the Maoists wer e making him walk in the dark. Mr. Ghimire say s that afte r this incident, he fled to Kathmandu, Nepa l’s capital. Whil e there , Mr. Ghimire say s that he saw an article in a newspa per called the Media Times W eek ly that

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m en t i o n ed t h e threa ts ag ainst him. Acc ording to Mr. Ghimire, while he was in Kathmandu, the Maoists came back to his house and demande d to know his wher eabouts. I t does not appea r that the Maoists made any threa ts ag ainst Mrs

. Gh i m i re or their children. There is no evidenc e that Mr. Ghimire or any one else soug ht assistance from the police. Acc ording to Mr. Ghimire, they did not seek p o lice assistance beca use the Maoists also ran the police awa y from his village , and if the Ghimires informed the police of w hat happe ned, the Ghimire s would have more “proble ms.” M r. Ghi mire testified that, in April 2003, his mother wrote him a letter say ing that t h e situation ha d not c hang ed. Mr. Ghimire also rec eived a letter from his brother

in 2005 say ing tha t the Maoists wanted to know Mr. Ghimire’s wher eabouts and also demande d that M r. Gh i m i re’s brother donate to the Maoists and work for their party

. When Mr. Ghimire’s brother ref used, the Maoists looted his wholesale store a nd frig htened him awa

y from his house. The Ghimires enter ed the Unit ed S tates on September 3, 2001 using nonimmigra nt, B- 2 visitor visas. The Gh i m i re s o v er s tay ed their visas and did not seek asy lum within the one-y ear period presc ribed by 8 U.S.C. § 1158(a) (2)( B)

. Acc ording to Mr. Ghimire, they did not seek asy lum beca use they wer e not awa

re of how to file a pe tition for asy lum. On Fe bruar

y 9, 2005, the Gover

nment initiated remova l proce dures ag ainst all four members

o f the Ghimire family for overstay ing their visas. I n addition, the Gover nment alleg ed that M rs . Ghimire was remova

ble under 8 U.S.C. § 1227(a)(2) (A)( i) for ha ving be en convic ted in 2004 in a Michig an court of se cond-de g ree reta il f raud, a misdemeanor punishable by a y ear -long sentenc e.

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On April 19, 2006, the Ghimires eac h filed for asy lum and withholding of remova l based on Mr. Ghimire’ s p o litical opinions, membership in the Nepa li Congr ess Party , and a fea r of being tortured. The immigra

tion judge consolidated the Ghimires’ individual remova l proce eding s and conducte d six hear ings. The Go v er n m ent challeng ed the authenticity of the newspa per article that Mr. Ghimire offe red. I n support of this challeng e, the L ibrary of Congr ess’s repr esenta tive in Nepa l sear ched the require d reg ister of newspa pers kept by the Press Council of Nepa l and three Nepa li libraries. The repr esenta tive did not find any copies of the Media T i me s W eek ly

. The Gover

nment then soug ht fore nsic an al y s i s o f the newspaper. The Forensic Document L abora tory of U.S

. I mmigra tion and Customs Enforc ement was not able to authentica te the newspa per “due to the absenc e of compar able g enuine sa mple newspa

pers in the [Forensic Document L abora tory ] refer ence library .” See L etter from Kar en Cox , For ensic Do cu m en t Ex aminer, to Tara L

. Good, Assistant Chief Counsel, U.S. I mmigra tion and Customs Enforce ment, A.R. 222. The Ghimi res sought t o counter this evidenc e by offe ring aff

idavits from a journalist and an attorney in Nepa l who both stated that many newspa pers are short-lived and do not reg ister with the Nepa li g overnme nt. The journalist also said he reme mb er ed re ad i ng the article about Mr. Ghimire. An additional issue with the article arose when the Gover

nment conducte d its own translation of the article

. Mr. Ghimire’s translation say s that the article repor

ted the incident involving the Maoists threa tening Mr. Ghimire as occur ring on Dec ember 27, 2007, which is problematic as the paper is dated J anuar y 3, 2001. The Gover

nment’s translation say s the article ref err ed to Dec ember

12, 2000 as the da te of the inc ident.

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The immigra tion judge conclude d that the Ghimires wer e not elig ible for asy lum beca use t h ei r applications wer e not filed within one y ear of their entry into the United Stat es an d t h e Ghimires did n o t show their elig ibilit y under one of the exceptions for extraordinary or chang ed circ umstances. The immigra tion judge also found cre d ibilit y issues with Mr. and Mrs. Ghimire. The immigra tion judge found Mr. Ghimire’s testimony “interna lly consistent,” but “g ener ally vag ue and unpersua sive.” Ora l D ecision of the I mmigra tion Judge , A.R. 97. Of g rea ter conce rn to the judge

wer e the contra dictions betwee n Mr. Ghimire’s testimony and that of Mrs. Ghimire. The judge also expressed conce rn about the lack of corr oborating ev i d en ce and noted that the authenticity of the article from Media Times W eek ly could not be established. The judge did not find that the aff idavits from the Nepa li journalist and lawy er overc ame the lack of officia l source s, in part beca use there was

no evidenc e supporting the vera city of the aff idavits. The controve rsy over the incident’s date was of g rea t conce rn to the judge

. Ba sed on the totality of the circ umstances, the immigra tion judge found neither

the Ghimires nor the article to be cr edible. Ba sed on this cre dibilit y finding , the immigra tion judge reje cted the Ghimires’ arg uments for withhol d i n g o f re m o val. The immigra tion judge found that the alleg ed incidents did not constitute perse cution, and that even if they did, the Ghimires did not establish a nexus between these events and a protec ted g round. Acc ording to the immigra tion judge , it was more plausible that the Maoists w ere indiscriminately g oing from door to door demanding membership and donations than that the Maoists wer e targ eting Mr. Ghimire based on his party memb e r s h ip o r political opinion.

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The immigra

tion judge also conclude d that the Ghimires had not established that it was more likely than not tha t the y would be tortured, rea soning that even if upon their return to N epal the situation

wer e pre car ious, there wa s no evidenc e that Mr. Ghimire would be torture d. The Boa rd of I mmigra tion Appea ls (B I A) aff irmed the immigra tion judge ’s decision, adopting and supplementing her oral decision. The BI A’s decision noted that the Ghimires did not challeng e the immigra tion judge ’s conclusion that the asy lum application was time-barr ed. Acc ording ly , the BI

A deeme d the asy lum issue to be waived. The Ghimires petition f or revie w of the B I A’s dec ision. Although the Ghimires argue d t o the immigra tion judge and the BI A that their remova l should be withheld under Article 3 of the Convention A g ainst Torture , the Ghimires do not rene w their Convention Ag ainst Torture arg ument befor e this court. Nor do the Ghimires attempt to revive their asylum claim. The Ghimires’ perse cution claim is b a s e d o n th eir story of what happene d in Dec ember 2000. The immigra tion judge h o we v er d i d not believe this story and made adver se cre dibilit y finding s ag ainst the Ghimires. Be cause substantial evidenc e supports the immigra tion judge ’s finding s and the B I A’s af

firmanc e, the Ghimire s’ petition for re view is without merit. The Ghimires’ failure t o m ak e an expli cit challeng e to the immigra tion judge ’s adver se

cre dibilit y deter

minations is a waiver of a dispositi ve issue and thus supports denial of their petition for revie w. See, e.g. , Cruz-Samayoa v. Holder , 607 F.3d 1145, 1155 (6th Cir. 2010). Howeve r, even if t h i s court understands the Ghimires’ arg ument to make an implicit challeng e to the adver se

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cre dibilit y

deter minations, the Ghimires’ petition for re view fa ils. The testimony of Mr. and Mrs. Ghimire was inconsistent as to t wo key fac ts: the number of Maoists that confr onted them and whether Mr. Ghimire was phy sically harme d. As the BI A said, this was “the most important event of their withholding claim.” Dec ision of the BI A, A.R. 4. Under the REAL I D Act of 2005, which applies to this case , inconsistencies do not have to g o to the hear t of the claim to support an immigra tion judge ’s finding that a claimant is not cre dible. See El-Moussa v. Holder , 569 F.3d 250, 256 (6th Cir. 2009)

. Her e in a ny event there are inconsistencies at the hear t of the claim, such that

a rea sonable adjudicator could conclude that the Ghimires wer e not cre dible. I n addition, the i m m i gra tion judge found the only direc t corr oborating evidenc e—the article from Media Ti me s W eek ly —could not to be verifie d as authentic. Whil e it is possible that another immigra tion judg e may have found the aff

idavits from t h e journalist and the lawy er to be sufficie ntly reliable , the evidenc e in the rec ord is not so reliable that any rea sonable adjudicator would be compelled to find either the Ghimires cre dible or the newspa per article authentic. See 8 U. S

. C

. § 1252(b)( 4)(B ). Acc ording ly , the B I A prope rly aff irmed the immigr ation judge ’s adve rse c redibility finding s. Fur ther, the immigra tion judge and BI A corr ectly c o n c lude d that the Ghimires’ testimony did not rise to the level of past perse cut i o n . Ba s ed o n t he overa ll context, the verba l threa ts did not amount to perse cution. See Japarkulov a v. Holder , 615 F.3d 696, 700–01 (6th Cir. 2010). Wit hout

more evidenc e, the Ghimires’ fea r appea rs to be verba l hara ssment rathe r than “the sort of ‘immediate and menac ing’ threa t tha t a mounts to perse cution.” Id. at 701 (quoting Boyk ov v. INS , 1 0 9 F.3d 413, 416 (7th Cir. 1997)). I n addition, the Ghim ires did not establish a sufficient n ex u s

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betwee n a protec ted g round and the alleg ed threa ts. The immigra tion judge found that the Maoists

wer e indiscriminately g oing from house to house seeking money rathe r than targ eting Mr. Ghimire based on his political opinions or party membership. As the BI A noted, Mr. Ghimire testified that the Maoists wer e primarily interested in money and asked him to join their party befor e he informed them of his party

membership. There is substantial evid en ce s upporting the immigra tion judge ’s finding s reg arding

cre dibilit y and motivation. To show future perse cution, the Ghimires can only rely upon the State Depa rtment’s trave l war

nings and country repor

ts, and letters from the Ghimires’ rela tives in Nepa l. Whil e this evidenc e sug g ests a country in tur moil, it does not e stablish a ny err or with the BI A’s or immigra tion judge ’s conclusions that the Ghimires have not met the high standard for withholding of re moval based on f

ear s of future perse cution. The Ghimires’ petition for re view of the BI A dec ision is denied.

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