## Facts

- Anup Shrestha, a native and citizen of Nepal, entered the United States in November 1998 as a nonimmigrant student.
- He attended community college until December 2001, then stopped attending and fell out of lawful status.
- In April 2007, the government initiated removal proceedings; Shrestha conceded removability.
- In July 2007, Shrestha applied for asylum, withholding of removal, and protection under the Convention Against Torture (CAT).
- Shrestha claimed that in October 1998 Maoists came to his family home, attempted to recruit him, and beat him when he refused; he asserted he lost consciousness, was hospitalized for about a week, then stayed with an uncle before leaving Nepal about a month later.
- He alleged Maoists continued to inquire about him after he left, and his parents warned him not to return due to the Maoists’ continued interest and conditions in Nepal.

## Issues

1. Whether the court of appeals had jurisdiction to review the denial of asylum as untimely under the one-year filing deadline.
2. Whether substantial evidence supported the agency’s adverse credibility determination under the REAL ID Act standard governing credibility findings.
3. Whether, given the credibility determination and other evidence, Shrestha established eligibility for withholding of removal or CAT protection.

## Decision

- The court dismissed the petition for review as to asylum for lack of jurisdiction because the asylum application was time-barred and the timeliness determination was not reviewable on the arguments presented.
- The court denied the petition for review as to withholding of removal and CAT protection.
- The court held that substantial evidence supported the IJ’s and BIA’s adverse credibility determination under the REAL ID Act, based on identified inconsistencies, omissions, and related reasoning assessed under the totality of the circumstances.
- Because Shrestha’s claims for withholding and CAT largely depended on discredited testimony and the remaining objective evidence did not compel relief, the agency’s denial of withholding and CAT was affirmed.

## Legal Principles

- Federal courts generally lack jurisdiction to review an agency determination that an asylum application is untimely under 8 U.S.C. § 1158(a)(3), absent a reviewable constitutional claim or question of law.
- Under 8 U.S.C. § 1158(b)(1)(B)(iii) (REAL ID Act), credibility may be evaluated based on the totality of the circumstances and all relevant factors, including inconsistencies and inaccuracies, regardless of whether they go to the heart of the claim.
- The REAL ID Act does not require that every minor inconsistency automatically defeat credibility; the adjudicator must evaluate the nature and significance of discrepancies in context and address explanations offered.
- An adverse credibility determination must rest on specific, cogent reasons and is reviewed for substantial evidence; it must be upheld unless any reasonable adjudicator would be compelled to reach the opposite conclusion.
- When withholding of removal and CAT claims primarily rely on discredited testimony, the applicant must provide independent objective evidence sufficient to meet the “more likely than not” standards for persecution or torture.

## Conclusion

The Ninth Circuit dismissed review of the untimely asylum claim for lack of jurisdiction and denied review of withholding and CAT relief, holding that the agency reasonably found Shrestha not credible under the REAL ID Act’s totality-of-the-circumstances standard and that the remaining evidence did not compel protection from removal.


Shrestha v. Holder, 590 F.3d 1034 (9th Cir. 2010)