Hutapea v. Holder

FILED
NOT FOR PUBLICATION JAN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BASTIAN HUTAPEA; UMEISA No. 06-71619
SINAMBELA,
Agency Nos. A096-346-398
Petitioners, A096-346-399
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 15, 2009 **
Before: GOODWIN, WALLACE, and FISHER, Circuit Judges.
Bastian Hutapea and his wife, Umeisa Sinambela, natives and citizens of
Indonesia, petition for review of the Board of Immigration Appeals’ order
dismissing their appeal from an immigration judge’s decision denying their
*
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).
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application for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for substantial evidence the agency’s adverse credibility
determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002), and dismiss in part
and deny in part the petition for review.
We lack jurisdiction to review the agency’s determination that petitioners
failed to demonstrate changed circumstances excusing the untimely filing of their
asylum application because the underlying facts are disputed. Cf. Ramadan v.
Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam). Accordingly, we
dismiss the petition as to the asylum claim.
Substantial evidence supports the agency’s adverse credibility determination
because Hutapea’s testimony about the harm his mother-in-law suffered was
materially inconsistent with his prior testimony and declarations. See Kohli v.
Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007). In the absence of credible
testimony, Hutapea failed to establish eligibility for withholding of removal. See
Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, because Hutapea’s CAT claim is based on the same testimony the
agency found not credible, and he points to no other evidence the agency should
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have considered, substantial evidence supports the agency’s denial of CAT relief.
See id. at 1156-57.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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