FILED
NOT FOR PUBLICATION APR 26 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROSABELLE WANJIRU NGUYAI, No. 09-71213
Petitioner, Agency No. A098-525-809
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Rosabelle Wanjiru Nguyai, a native and citizen of Kenya, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s decision denying her application for asylum,
withholding of removal, and protection under the Convention Against Torture
*
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).
(“CAT”). We review de novo questions of law and for substantial evidence factual
findings. Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We have
jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
The record does not compel the conclusion Nguyai established extraordinary
circumstances excusing her late filing. See 8 C.F.R. § 1208.4(a)(5). Accordingly,
we deny the petition as to her asylum claim.
Substantial evidence supports the agency’s adverse credibility finding based
on inconsistencies between Nguyai’s testimony and asylum application regarding
whether she went into hiding and moved around to avoid the Mungiki, see Pal v.
INS, 204 F.3d 935, 939-40 (9th Cir. 2000), and based on her failure to provide
corroboration, see Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir. 2000) (“if the trier
of fact either does not believe the applicant or does not know what to believe, the
applicant’s failure to corroborate his testimony can be fatal to his asylum
application”). Accordingly, in the absence of credible testimony, we deny the
petition as to Nguyai’s withholding of removal claim. See Farah v. Ashcroft, 348
F.3d 1153, 1156 (9th Cir. 2003).
Finally, Nguyai’s CAT claim fails because it is based on the same statements
that the agency found not credible, and the record does not otherwise compel the
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finding that it is more likely than not Nguyai would be tortured by or with the
acquiescence of the government if returned to Kenya. See id. at 1156-57.
PETITION FOR REVIEW DENIED.
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