Vaskin Derbasikhian v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUN 12 2013

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

VASKIN DERBASIKHIAN, No. 10-70727

Petitioner, Agency No. A095-618-026

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 10, 2013 **

Before: HAWKINS, McKEOWN, and BERZON, Circuit Judges.

Vaskin Derbasikhian, a native and citizen of Syria, petitions for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). We have

*
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).
jurisdiction under 8 U.S.C. § 1252. We review de novo the agency’s legal

determinations and review for substantial evidence the agency’s factual findings.

Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the petition for

review.

The record does not compel the conclusion that Derbasikhian established

changed or extraordinary circumstances excusing his untimely asylum application.

See 8 C.F.R. § 1208.4(a)(4)-(5); 8 U.S.C. § 1158(a)(2)(D) (changed circumstances

must “materially affect the applicant’s eligibility for asylum[.]”). We reject

Derbasikhian’s contention that the BIA ignored evidence that showed changed

circumstances in Syria between 2001 and 2004. Consequently, his asylum claim

fails.

Substantial evidence supports the agency’s adverse credibility determination

based on the inconsistency between Derbasikhian’s asylum application and

testimony about whether or not he lost consciousness after being beaten in a park.

See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007) (inconsistencies

between testimony and declaration regarding the degree of abuse supported

adverse credibility determination); Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir.

2011) (“[m]aterial alterations in the applicant’s account of persecution are

sufficient to support an adverse credibility finding.”). Derbasikhian’s explanations

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do not compel a contrary result. See Kohli, 473 F.3d at 1071. Further, contrary to

his contention, the BIA did not find that he “did not explain the inconsistency.” In

the absence of credible testimony, Derbasikhian’s withholding of removal claim

fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Finally, Derbasikhian’s CAT claim also fails because is based on the same

testimony found not credible, and the record does not otherwise compel the

conclusion that it is more likely than not he will be tortured if returned to Syria.

See Almaghzar v. Gonzales, 457 F.3d 915, 923 (9th Cir. 2006) (record showed

torture occurred in petitioner’s home country but did not compel finding that

petitioner would be tortured).

PETITION FOR REVIEW DENIED.

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