FILED
NOT FOR PUBLICATION JUL 26 2012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
SUBHASH KUMAR, No. 08-70057
Petitioner, Agency No. A016-077-005
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 10, 2012 **
Pasadena, California
Before: TALLMAN and N.R. SMITH, Circuit Judges, and BENSON, District
Judge.***
*
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).
*** The Honorable Dee V. Benson, District Judge for the U.S. District
Court for Utah, sitting by designation.
Subhash Kumar (“Petitioner”), a citizen and native of India, seeks review of
a decision of the Board of Immigration Appeals (BIA) affirming an immigration
judge’s (IJ) decision to deny his applications for asylum and withholding of
removal under § 241(b)(3) of the Immigration and Nationality Act, 8 U.S.C.
§ 1231(b)(3), and for protection under the Convention Against Torture (CAT).
1. We dismiss for lack of jurisdiction Petitioner’s challenge to the BIA’s
determination that his application for asylum was untimely because that issue
involves disputed facts. 8 U.S.C. §§ 1158(a)(3), 1252(a)(2)(D); Hakeem v. I.N.S.,
273 F.3d 812, 815 (9th Cir. 2001); Hakopian v. Mukasey, 551 F.3d 843, 847 (9th
Cir. 2008).
2. We deny the petition as to withholding of removal and protection under
CAT because the adverse credibility findings are supported by substantial
evidence. Petitioner filed his applications before May 11, 2005, so we apply the
pre-REAL ID Act rules. Rizk v. Holder, 629 F.3d 1083, 1087 n.2 (9th Cir. 2011).
“We must uphold the IJ’s adverse credibility determination so long as one of
the identified grounds is supported by substantial evidence and goes to the heart of
the alien’s claim of persecution.” Id. at 1087 (internal quotation marks and
alterations omitted). To reverse the factual findings, “the evidence must compel a
different conclusion from the one reached by the BIA.” Zheng v. Holder, 644 F.3d
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829, 835 (9th Cir. 2011). Here the IJ relied on numerous inconsistencies in the
evidence and testimony provided by Petitioner. The irregularities contained in
Petitioner’s terrorist victim card along with general inconsistencies in his
testimony are supported by the record. These issues go to the heart of Petitioner’s
claim. Because the record does not compel reversal of the adverse credibility
finding, Petitioner has not shown that he is entitled to withholding of removal.
Because Petitioner’s CAT claim is based on the same testimony the IJ found
not credible, and he points to no other arguments showing it is more likely than not
he will be tortured if returned to India, his CAT claim also fails. See Farah v.
Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir. 2003).
Petition is DISMISSED in part, and DENIED in part.
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