                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 28 2015

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



                             FOR THE NINTH CIRCUIT


EDGAR ZARGARYAN,                                 No. 12-73367

               Petitioner,                       Agency No. A097-859-273

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

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Edgar Zargaryan, a native and citizen of Armenia, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order denying his motion to remand and

dismissing his appeal from an immigration judge’s decision denying his

application for asylum, withholding of removal, and protection under the


          *
             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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s factual findings,

Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001), for abuse of discretion the

denial of a motion to remand, Malhi v. INS, 336 F.3d 989, 993 (9th Cir. 2003), and

de novo claims of due process violations, Simeonov v. Ashcroft, 371 F.3d 532, 535

(9th Cir. 2004). We deny the petition for review.

      As an initial matter, the BIA did not abuse its discretion in denying

Zargaryan’s motion to remand where he failed to demonstrate prima facie

eligibility for adjustment of status. See INS v. Abudu, 485 U.S. 94, 104 (1988).

The record does not support Zargaryan’s contention that the BIA did not consider

all the evidence, including his declaration. Further, we reject Zargaryan’s

contention that the BIA violated due process by denying his motion to remand.

See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice

to prevail on a due process claim).

      Substantial evidence supports the BIA’s adverse credibility determination

based on the inconsistencies between Zargaryan’s testimony and documentary

evidence regarding when he was harmed, when he left Armenia for Moscow, and

when and how he obtained travel documents. See Chebchoub, 257 F.3d at 1043

(inconsistencies “about the events leading up to [petitioner’s] departure,” go to the


                                          2                                    12-73367
heart of the claim, and support an adverse credibility finding). Zargaryan’s

explanations do not compel a contrary result. See Lata, 204 F.3d at 1245. We

reject Zargaryan’s contentions that the agency’s findings are based on speculation

and conjecture. In the absence of credible testimony, Zargaryan’s asylum and

withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003).

      Further, because Zargaryan’s CAT claim is based on the same testimony

found not credible, and he does not point to any other evidence that compels the

finding that it is more likely than not he would be tortured if returned to Armenia,

his CAT claim also fails. See id. at 1156-57. Contrary to Zargaryan’s contention,

the record shows the agency considered the country report.

      This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

      PETITION FOR REVIEW DENIED.




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