FILED
NOT FOR PUBLICATION APR 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HANMIN WU, Nos. 06-72569
06-74314
Petitioner,
Agency No. A095-450-201
v.
ERIC H. HOLDER Jr., Attorney General, MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
In these consolidated cases, Hanmin Wu, a native and citizen of China,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
application for asylum, withholding of removal, and relief under the Convention
Against Torture (“CAT”) in No. 06-72569, and the BIA’s order denying his
motions to reopen, reconsider, and accept a late filed brief in No. 06-74314. Our
jurisdiction is governed 8 U.S.C. § 1252. We review for substantial evidence
adverse credibility determinations, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th
Cir. 2008), we review for abuse of discretion denials of motions to reopen and
reconsider, and we review claims of due process violations de novo, Cano-Merida
v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petition for review in No.
06-72569, and deny in part and dismiss in part the petition for review in No. 06-
74314.
Substantial evidence supports the agency’s adverse credibility finding based
upon Wu’s failure to offer a compelling explanation for a conceded discrepancy
between his testimony before the asylum officer and his testimony before the IJ
regarding his family’s payment of money to secure his release from detention. See
Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (adverse credibility finding
supported based upon discrepancies regarding the amount of a fine assessed for
violation of one-child policy). Accordingly, in the absence of credible testimony,
we deny the petition as to Wu’s asylum and withholding of removal claims. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
2 06-72569
Because Wu’s CAT claim is based on the testimony the agency found not
credible, and he points to no other evidence showing it is more likely than not he
will be tortured if returned to China, we also deny the petition as to Wu’s CAT
claim. See id. at 1156-57.
The BIA did not abuse its discretion in denying Wu’s motion to reopen
based upon ineffective assistance of counsel because Wu could not demonstrate
counsel’s failure to a file a timely brief to the BIA “may have affected the outcome
of the proceedings.” See Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir.
2005) (internal quotation omitted). In particular, the BIA considered and properly
rejected Wu’s contention in his untimely brief to the BIA that lack of a certification
process for interpreters appearing at asylum interviews prejudicially violated his
due process rights. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)
(requiring a showing of prejudice to prevail on a procedural due process claim).
Likewise, the BIA considered and rejected Wu’s challenge to the IJ’s adverse
credibility finding, which was supported by substantial evidence. See Li, 378 F.3d
at 962.
The BIA did not abuse its discretion in denying Wu’s motion to reconsider
because Wu failed to identify any error of fact or law in the BIA’s April 20, 2006
order. See 8 C.F.R. § 1003.2(b)(1).
3 06-72569
To the extent Wu contends the BIA abused its discretion in refusing to
accept his late-filed brief, we lack jurisdiction over the BIA’s discretionary
determination. See Zetino v. Holder, 596 F.3d 517, 524-25 (9th Cir. 2010).
No. 06-72569: PETITION FOR REVIEW DENIED.
No. 06-74314: PETITION FOR REVIEW DENIED in part;
DISMISSED in part.
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