                                                                            FILED
                            NOT FOR PUBLICATION                             NOV 13 2013

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


NANDLAL SHIVDASANI,                               No. 09-72748

              Petitioner,                         Agency No. A096-137-820

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

              Respondent.


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

                            Submitted November 4, 2013**
                              San Francisco, California

Before: FARRIS, FERNANDEZ, and IKUTA, Circuit Judges.

       Nandlal Shivdasani, a native and citizen of India, petitions for review of the

Board of Immigration Appeals’ dismissal of his appeal from the immigration

judge’s denial of his application for asylum, withholding of removal, protection

under the Convention Against Torture and, in the alternative, voluntary departure.

        *
             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).
We review legal questions de novo and review factual findings, including adverse

credibility findings, for substantial evidence. Lopez-Cardona v. Holder, 662 F.3d

1110, 1111 (9th Cir. 2011); Chawla v. Holder, 599 F.3d 998, 1001 (9th Cir. 2010).

A denial of asylum, withholding of removal, or CAT relief is reviewed for

substantial evidence. Sinha v. Holder, 564 F.3d 1015, 1025 (9th Cir. 2009);

Zehatye v. Gonzales, 453 F.3d 1182, 1184–85 (9th Cir. 2006). We have

jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for review.

      Shivdasani first challenges the agency’s adverse credibility finding. The

agency’s finding was based on inconsistencies in Shivdasani’s testimony regarding

where he received medical care after his alleged mistreatment by Kashmiri police

and whether he was admitted to the hospital as an outpatient, as well as

inconsistencies between his testimony and his argument before the BIA regarding

why a letter from his doctor does not mention that he suffered broken bones. These

inconsistencies raise questions regarding Shivdasani’s credibility. Moreover,

given that they bear on the medical care Shivdasani received for his alleged

injuries and thus the seriousness of those injuries, we hold that they go to “the

heart of the asylum claim.” Singh v. Ashcroft, 367 F.3d 1139, 1143 (9th Cir.

2004); Pal v. INS, 204 F.3d 935, 938 (9th Cir. 2000). These inconsistencies are

distinguishable from those in cases cited by Shivdasani, which involved issues


                                           2
tangential to the alleged persecution, see Singh v. Ashcroft, 362 F.3d 1164,

1170–71 (9th Cir. 2004); Wang v. Ashcroft, 341 F.3d 1015, 1021–22 (9th Cir.

2003), or were limited to dates, see Zahedi v. INS, 222 F.3d 1157, 1166–67 (9th

Cir. 2000); Shah v. INS, 220 F.3d 1062, 1067–68 (9th Cir. 2000). The agency’s

adverse credibility finding is supported by substantial evidence.

      Shivdasani’s challenges to the agency’s denial of asylum and withholding of

removal fail. Under the Immigration and Nationality Act, an asylum applicant

must show that he is unable or unwilling to return to his country “because of

persecution or a well-founded fear of persecution.” 8 U.S.C. § 1101(a)(42)(A); see

also id. § 1158(b)(1)(A). A well-founded fear of future persecution “must be both

subjectively genuine and objectively reasonable.” Duarte de Guinac v. INS, 179

F.3d 1156, 1159 (9th Cir. 1999); see also Fisher v. INS, 79 F.3d 955, 960 (9th Cir.

1996) (en banc). Substantial evidence supports the adverse credibility finding.

Shivdasani’s testimony failed to establish either past persecution or a well-founded

fear of future persecution. Although Shivdasani presented several affidavits and

other supporting documentation, the agency reasonably determined that these were

insufficient to meet his burden. See Jie Cui v. Holder, 712 F.3d 1332, 1338 (9th

Cir. 2013). Substantial evidence also supports the BIA’s finding that Shivdasani




                                          3
failed to meet the higher burden to show entitlement to withholding of removal.

See Lata v. INS, 204 F.3d 1241, 1244 (9th Cir. 2000).

      Protection under CAT applies if the petitioner shows that “it is more likely

than not that he or she would be tortured if removed to the proposed country of

removal.” 8 C.F.R. § 208.16(c)(2), (d)(1); see also Kamalthas v. INS, 251 F.3d

1279, 1284 (9th Cir. 2001). Here, the evidence in support of Shivdasani’s CAT

claim is the same as that in support of his asylum and withholding of removal

claims. As such, it is insufficient. Substantial evidence supports the agency’s

determination. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).

      Finally, Shivdasani challenges the agency’s denial of voluntary departure.

The facts underlying this ruling are undisputed. We have jurisdiction to review it.

See 8 U.S.C. § 1252(a)(2)(D); Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir.

2007). An IJ may grant an alien voluntary departure only if he has a passport or

other sufficient travel documentation, 8 C.F.R. § 1240.26(b)(3)(i), or “is making

diligent efforts to secure it,” id. § 1240.26(b)(3)(ii). Shivdasani failed to make

such a showing.

      PETITION FOR REVIEW DENIED.




                                           4
