Rebati Datta v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 27 2012

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

FOR THE NINTH CIRCUIT

REBATI MOHAN DATTA, No. 11-72794

Petitioner, Agency No. A200-757-136

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

Respondent.

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

Submitted July 17, 2012 **

Before: SCHROEDER, THOMAS, and SILVERMAN, Circuit Judges.

Rebati Mohan Datta, a native and citizen of Bangladesh, petitions pro se for

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

from an immigration judge’s (“IJ”) decision denying his 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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, applying the new standards

governing adverse credibility determinations created by the Real ID Act, Shrestha

v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010), and we review de novo claims of

due process violations in immigration proceedings, Zetino v. Holder, 622 F.3d

1007, 1011 (9th Cir. 2010). We deny in part and dismiss in part the petition for

review.

We do not consider the new documentary evidence Datta submitted because

our review is limited to the administrative record underlying the IJ’s decision. See

Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

Substantial evidence supports the agency’s adverse credibility determination

based on inconsistencies between Datta’s declaration and testimony regarding

whether he knew his attackers and regarding the sequence of the attacks at his

home and on the street. See Shrestha, 590 F.3d at 1048 (adverse credibility finding

reasonable under totality of circumstances). Further, Datta’s explanations for these

inconsistencies do not compel a contrary conclusion. See Zamanov v. Holder, 649

F.3d 969, 974 (9th Cir. 2011). In the absence of credible testimony, Datta’s

asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003).

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 In addition, Datta’s CAT claim fails because it is based on the same

statements the agency found not credible, and the record does not otherwise

compel the finding that it is more likely than not he would be tortured by or with

the acquiescence of the government if returned to Bangladesh. See id. at 1156-57.

Moreover, the BIA did not err in rejecting Datta’s due process challenges.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring both error and

“substantial prejudice” to prevail on a due process challenge to deportation

proceedings). Finally, we lack jurisdiction to review Datta’s contention that the IJ

was prejudiced against him because he failed to raise this issue to the BIA. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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