                                                                              FILED
                             NOT FOR PUBLICATION                               FEB 16 2010

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



                              FOR THE NINTH CIRCUIT


BAYASGALAN DSERENOCHIR;                          No. 05-75127
DOLGIO NATSAGDORJ;
SUVDANCHIMEG BAYASGALAN;                         Agency Nos. A097-583-395
MUNGUNCHIMEG BAYASGALAN,                                    A097-583-396
                                                            A097-583-397
              Petitioners,                                  A097-583-398

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

              Respondent.


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

                             Submitted February 11, 2010**
                               San Francisco, California

Before: THOMPSON and McKEOWN, Circuit Judges, and ZILLY, *** Senior
District Judge.



        *
             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).
        ***
            The Honorable Thomas S. Zilly, Senior United States District Judge
for the Western District of Washington, sitting by designation.
      Bayasgalan Dserenochir,1 a citizen of Mongolia, petitions for review of the

order by the Board of Immigration Appeals (BIA) dismissing his appeal of an

immigration judge’s (IJ) denial of his application for asylum, withholding of

removal, and relief under the Convention Against Torture (CAT). The IJ denied

relief on adverse credibility grounds, and the BIA affirmed. We have jurisdiction

under 8 U.S.C. § 1252.

      Credibility findings are reviewed under a substantial evidence standard and

will be upheld unless the evidence compels a contrary result. He v. Ashcroft, 328

F.3d 593, 595 (9th Cir. 2003) (citation omitted). “To reverse the BIA finding we

must find that the evidence not only supports that conclusion but compels it.”

I.N.S. v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). The BIA held that the IJ’s

adverse credibility determination was supported by 1) numerous inconsistencies; 2)

Dserenochir’s vague and non-responsive testimony; and 3) a lack of corroborating

evidence. Because the BIA’s order was supported by substantial evidence and the

evidence does not compel a contrary result, we deny the petition for review. See

He, 328 F.3d at 595.

      1
         Dserenochir’s wife and two minor children, all also citizens of Mongolia,
also petition for asylum, withholding of removal, and relief under the CAT
derivatively. Because Dserenochir’s testimony forms the only evidence in support
of their applications, their applications are tied to the outcome of Dserenochir’s
application.

                                         2
      Dserenochir asserted past persecution and a fear of future persecution by the

Mongolian Communist Party because of his former support of democratic leaders,

his unwillingness to support Communist leaders, and his unwillingness to provide

“false evidences” against his friends in the opposition. However, Dserenochir

testified inconsistently with respect to his declaration and between direct

examination and cross-examination in recounting a number of key details of the

central event in his alleged persecution, when Communist officials in the

government came to his house and subsequently detained him and beat him for his

support of democratic leaders. Dserenochir also testified vaguely and non-

responsively with respect to one of the other main grounds for his asylum claim:

that the Communist Party was asking him to fabricate cases against democratic

leaders. These inconsistencies and Dserenochir’s vague and non-responsive

testimony are specific, cogent reasons that goes to the heart of his claim, and thus,

there is substantial evidence to support the adverse credibility finding.2 Shire v.

Ashcroft, 388 F.3d 1288, 1295, 1298 (9th Cir. 2004).




      2
        Because Dserenochir’s asylum application was filed prior to May 11, 2005,
the REAL ID Act, which did away with the “heart of the claim” rule, see 8 U.S.C.
§ 1158(b)(1)(B)(iii), does not apply. See Kaur v. Gonzales, 418 F.3d 1061, 1064
n.1 (9th Cir. 2005).

                                          3
        Finally, although a petitioner for asylum may rely on testimony alone to

establish the requisite fear of persecution, Molina-Estrada v. I.N.S., 293 F.3d 1089,

1094 (9th Cir. 2002), where that testimony lacks credibility and there is an absence

of other supporting evidence, the testimony alone is insufficient to form the basis

of an asylum or withholding of removal claim. Dserenochir has advanced no

documentation or additional evidence to support his claims of his past persecution,

political activity, or medical treatment for his kidney problems or ongoing

depression allegedly due to his torture and persecution. He similarly provided no

documentation to support his characterization of a campaign of persecution by the

Communist Party in Mongolia of democratic supporters that would create a

reasonable fear of persecution by individuals such as himself. Accordingly, we are

not presented with a situation where “the evidence presented was so compelling

that no reasonable factfinder could find that the petitioner was not credible.” Id. at

1295.

        Because Dserenochir failed to satisfy his burden of establishing eligibility

for asylum relief through credible evidence, he also cannot meet the higher

withholding of removal standard. Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th

Cir. 2000). Finally, because Dserenochir’s CAT claim is predicated on the same




                                           4
statements that doom his other claims, we must similarly affirm the rejection of

this claim. Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).

PETITION FOR REVIEW DENIED.




                                         5
