Opinion
No. 09-71213 Agency No. A098-525-809
04-26-2012
ROSABELLE WANJIRU NGUYAI, Petitioner, v. ERIC H. HOLDER, Jr., Attorney General, Respondent.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
On Petition for Review of an Order of the
Board of Immigration Appeals
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Rosabelle Wanjiru Nguyai, a native and citizen of Kenya, petitions for review of the Board of Immigration Appeals' ("BIA") order dismissing her appeal from an immigration judge's decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture ("CAT"). We review de novo questions of law and for substantial evidence factual findings. Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008). We have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.
The record does not compel the conclusion Nguyai established extraordinary circumstances excusing her late filing. See 8 C.F.R. § 1208.4(a)(5). Accordingly, we deny the petition as to her asylum claim.
Substantial evidence supports the agency's adverse credibility finding based on inconsistencies between Nguyai's testimony and asylum application regarding whether she went into hiding and moved around to avoid the Mungiki, see Pal v. INS, 204 F.3d 935, 939-40 (9th Cir. 2000), and based on her failure to provide corroboration, see Sidhu v. INS, 220 F.3d 1085, 1090 (9th Cir. 2000) ("if the trier of fact either does not believe the applicant or does not know what to believe, the applicant's failure to corroborate his testimony can be fatal to his asylum application"). Accordingly, in the absence of credible testimony, we deny the petition as to Nguyai's withholding of removal claim. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Finally, Nguyai's CAT claim fails because it is based on the same statements that the agency found not credible, and the record does not otherwise compel the finding that it is more likely than not Nguyai would be tortured by or with the acquiescence of the government if returned to Kenya. See id. at 1156-57.
PETITION FOR REVIEW DENIED.