                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 29 2011

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




                            FOR THE NINTH CIRCUIT



ANVAR MAKHMUDOVICH ENIKEEV,                      No. 07-71731

              Petitioner,                        Agency No. A096-070-571

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

              Respondent.



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

                            Submitted March 16, 2011 **
                             San Francisco, California

Before: HUG, W. FLETCHER, and M. SMITH, Circuit Judges.

       Petitioner Anvar Makhmudovich Enikeev, a citizen of Uzbekistan, petitions

for review of a Board of Immigration Appeals (BIA) decision denying his petition

for asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). Because the parties are familiar with the factual and procedural

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
history of this case, we do not recount additional facts except as necessary to

explain the decision. We deny the petition.

       Substantial evidence supports the adverse credibility determination. Where,

as here, “an adverse credibility determination . . . is based on serious

inconsistencies in the applicant’s testimony that go to the heart of his application,”

we will uphold that determination. Alvarez-Santos v. INS, 332 F.3d 1245, 1254

(9th Cir. 2003).

       Substantial evidence also supports the BIA’s determination that Enikeev was

not persecuted on account of a protected ground. “[A]n asylum seeker claiming to

be a victim of persecution on account of his or her political opinion must establish,

by evidence,” inter alia, that any “persecution of the victim has been or will be on

account of this opinion.” Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997).

Enikeev repeatedly testified, however, that the alleged harassment was unrelated to

his political activities or affiliations.

       Similarly, Enikeev has not established eligibility for relief under the CAT.

Enikeev’s allegations of mistreatment, including governmental surveillance and

harassment, do not rise to the level of torture. See Gui v. INS, 280 F.3d 1217, 1230

(9th Cir. 2002).




                                            2
       The Immigration Judge’s (IJ) questioning did not violate Enikeev’s due

process rights. “[T]he Due Process Clause does not preclude an IJ from asking

questions of witnesses.” Antonio-Cruz v. INS, 147 F.3d 1129, 1131 (9th Cir.

1998). Even if the questions were improper, they were not prejudicial because

Enikeev had previously asserted that the harassment was unrelated to his political

activities. See Burgos-Abril v. INS, 58 F.3d 475, 476 (9th Cir. 1995) (per curiam).

      Finally, the BIA did not abuse its discretion in denying Enikeev’s motion to

remand, because Enikeev’s new evidence did not establish that he was eligible for

relief. See Young Sun Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008)

(stating that motions to reopen must be supported by prima facie evidence of

eligibility for relief); Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir.

2008) (“The formal requirements of a motion to remand and a motion to reopen are

the same.”).

      Petition denied.




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