                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             SEP 12 2011

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

HASSAN AJI,                                      No. 07-71284

              Petitioner,                        Agency No. A078-750-805

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

              Respondent.



HASSAN AJI,                                      No. 07-73502

              Petitioner,                        Agency No. A078-750-805

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted August 31, 2011
                              Pasadena, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule. 36-3.
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

      Hassan Aji, a native and citizen of Syria, petitions for review of two Board

of Immigration Appeals (“BIA”) decisions. We have jurisdiction pursuant to

8 U.S.C. § 1252, and we deny the petition.

                                           I

      Accepting Aji’s explanation for his delay in filing his asylum application as

an undisputed fact, we conclude that the agency did not err in denying his

application as time barred. Aji’s subjective belief that his family members in Syria

might come to harm if he applied for asylum did not demonstrate the type of

extraordinary circumstances that would excuse the late filing of his application,

such as serious illness, legal incapacity, or ineffective assistance of counsel. 8

U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(5)(i)-(iii).

                                          II

      With respect to Aji’s withholding of removal and Convention Against

Torture (“CAT”) claims, the record evidence supports the agency’s determination

that significant inconsistencies existed between the event described in his

application and his account during his merits hearing of the harm he suffered and

feared in Syria. See Don v. Gonzales, 476 F.3d 738, 742 (9th Cir. 2007)

(concluding that “the lack of details regarding the event that allegedly spurred the


                                           2
[claimed persecution] goes to the heart of [the applicant’s] persecution claim and is

not trivial”); Singh v. Gonzales, 439 F.3d 1100, 1108 (9th Cir. 2006) (“An

inconsistency goes to the heart of a claim if it concerns events central to

petitioner’s version of why he was persecuted and fled.”). The record reflects that

Aji was given an opportunity to explain the inconsistencies, see Joseph v. Holder,

600 F.3d 1235, 1244-45 (9th Cir. 2010); and it does not compel the conclusion that

the person who assisted him in preparing his asylum application failed to record

accurately his account. Accordingly, substantial evidence supports the agency’s

denial of Aji’s application for withholding of removal and relief under CAT on the

basis of the adverse credibility finding.

                                            III

      The BIA did not abuse its discretion in denying Aji’s motion to reopen his

removal proceedings in order to permit him to apply for adjustment of status under

Section 245(i), 8 U.S.C. § 1255(i), on the basis of an immigrant visa petition filed

by his first wife on April 30, 2001. Aji’s submission of only a copy of the filing

receipt for that immigrant visa petition (the so-called “grandfathering petition” for

purposes of Section 245(i) eligibility) gave no indication of whether the petition

was approvable when filed. See 8 CFR § 1003.2(c)(1) (“A motion to reopen

proceedings for the purpose of submitting an application for relief must be


                                            3
accompanied by the appropriate application for relief and all supporting

documentation.”); see also 8 C.F.R. § 1245.10(a)(3) (defining “approvable when

filed” requirement for grandfathering under INA Section 245(i) to mean that “as of

the date of the filing . . ., the qualifying petition . . . was [1] properly filed, [2]

meritorious in fact, and [3] non-frivolous (‘frivolous’ being defined herein as

patently without substance)”). At most, the filing receipt for the grandfathering

petition establishes that the petition was “properly filed.” 8 CFR §

1245.10(a)(2)(i) (“Properly filed means . . . [w]ith respect to a qualifying

immigrant visa petition, that the application was physically received by the Service

on or before April 30, 2001, or if mailed, was postmarked on or before April 30,

2001, and accepted for filing . . . .”). It provides no further indication of whether

the grandfathering petition was “approvable when filed.”

       DENIED.




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