FILED
NOT FOR PUBLICATION MAR 15 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GILBERT MANZANARES DELA No. 08-73118
CRUZ,
Agency No. A072-401-630
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 13, 2013 **
San Francisco, California
Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.
Gilbert Manzanares Dela Cruz, a native and citizen of the Philippines,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
*
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).
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for asylum and withholding of removal. Our jurisdiction is governed
by 8 U.S.C. § 1252.
Substantial evidence supports the agency’s adverse credibility
determination. Dela Cruz acknowledged that his testimony at his asylum interview
was inconsistent with his testimony in the hearing before the IJ, some of those
inconsistencies going to who killed a New People’s Army (“NPA”) commander
and why the NPA threatened Dela Cruz. The inconsistencies go to the heart of
Dela Cruz’s asylum claim. See Pal v. INS, 204 F.3d 935, 939–40 (9th Cir. 2000).
Dela Cruz was given an opportunity to explain these inconsistencies, but his
explanations regarding the passage of time, battlefield confusion, and personal
confusion at the hearing do not compel a contrary conclusion. See Lata v. INS, 204
F.3d 1241, 1245 (9th Cir. 2000).
Dela Cruz’s contention that the agency erred in basing its adverse credibility
determination on his testimony to the asylum officer, because such testimony was
potentially unreliable or because Dela Cruz did not have an opportunity to cross
examine the officer, was not raised to the BIA. Therefore, we lack jurisdiction
over this claim and dismiss it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004). In the absence of credible testimony regarding past persecution or fear of
2
future persecution, we deny the petition as to Dela Cruz’s asylum and withholding
of removal claims.
DENIED IN PART; DISMISSED IN PART.
3