                                                                           FILED
                             NOT FOR PUBLICATION                            APR 26 2012

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




                             FOR THE NINTH CIRCUIT



ROSABELLE WANJIRU NGUYAI,                        No. 09-71213

               Petitioner,                       Agency No. A098-525-809

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

               Respondent.



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

                             Submitted April 17, 2012 **

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


          *
             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”). 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




                                          2                                    09-71213
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.




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