                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             OCT 16 2014

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

MYKOLA POPOVICH,                                 No. 11-70068

              Petitioner,                        Agency No. A089-551-471

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

              Respondent.


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

                            Submitted October 9, 2014**
                             San Francisco, California

Before: IKUTA, N.R. SMITH, and MURGUIA, Circuit Judges.

       Mykola Popovich petitions for review of the Board of Immigration

Appeals’s (BIA) order dismissing his appeal of an Immigration Judge’s (IJ) denial

of his application for asylum, withholding of removal, and relief under the United

Nations Convention Against Torture (CAT). Because Popovich filed his asylum

        *
             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).
application after May 11, 2005, the Real ID Act applies. See Shrestha v. Holder,

590 F.3d 1034, 1039 (9th Cir. 2010). We have jurisdiction pursuant to 8 U.S.C.

§ 1252(a)(1).

      The IJ’s adverse credibility finding was supported by substantial evidence,

including inconsistencies between Popovich’s testimony and his asylum

application. See Shrestha, 590 F.3d at 1039–40 (listing REAL ID Act credibility

factors, including “the consistency between the applicant’s or witness’s written and

oral statements”). For example, Popovich stated in his asylum application that he

saw young men running away from his violently damaged car, while at the hearing

he testified that he knew the perpetrators were with his persecutor because they

“were not even in a hurry to run away and they were threatening me that the same

thing that happened to the car would happen to me.” The BIA and IJ’s adverse

credibility determination was also supported by the implausibility of Popovich’s

testimony. See Jibril v. Gonzales, 423 F.3d 1129, 1135 (9th Cir. 2005). Among

other things, Popovich testified that he made no effort to obtain critical

photographs he sent to himself via certified mail in Ukraine, which would have

provided compelling evidence supporting his asylum claim.

      The BIA did not err in determining that, absent Popovich’s testimony, the

record does not sustain Popovich’s burden to show he is eligible for asylum due to


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persecution or a well-founded fear of persecution. See Deloso v. Ashcroft, 393

F.3d 858, 863–64 (9th Cir. 2005). For the same reason, the BIA’s denial of

Popovich’s claim for withholding of removal was supported by substantial

evidence. See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006). Nor did

the BIA err in concluding, based on the record without Popovich’s testimony, that

Popovich failed to sustain his burden to show eligibility for relief under CAT. See

Farah v. Ashcroft, 348 F.3d 1153, 1156–57 (9th Cir. 2003).

      PETITION DENIED.




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