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NOT FOR PUBLICATION JUN 12 2013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
2 10-70727
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.
3 10-70727