                                                                             FILED
                             NOT FOR PUBLICATION                             NOV 21 2011

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



                             FOR THE NINTH CIRCUIT


GAM GURUNG,                                     No. 08-70201

              Petitioner,                       Agency No. A098-829-384

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

              Respondent.


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

                            Submitted November 16, 2011**
                               San Francisco, California

Before: HAWKINS, McKEOWN, and M. SMITH, Circuit Judges.

       Gam Gurung, a native and citizen of Nepal, seeks review of a Board of

Immigration Appeals order dismissing his appeal from an Immigration Judge’s (“IJ”)

decision denying his application for asylum, withholding of removal, and protection

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

        *
             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).
§ 1252. Reviewing the agency’s factual findings for substantial evidence and

applying the standards governing adverse credibility determinations created by the

Real ID Act, see Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), we deny

the petition for review.

      Before the IJ, Gurung testified that: (1) he never voiced his opposition to or

opinion of the Nepalese government, directly contradicting an affidavit he submitted

in support of his application in which his friend described him as an “avid critic” of

the police and army who would raise his concerns at social and religious gatherings;

and (2) he did not know whether his brother-in-law’s brother Hari Prasad Bhattarai

was involved in politics or anything other than a transport business, directly

contradicting his own earlier declaration in which he described Prasad’s membership

in a non-governmental organization that tracks government and army misconduct.

These inconsistencies are nontrivial because Gurung claims persecution by the

government based on his political beliefs and on the imputed political beliefs of

Prasad. Given only speculative and unconvincing explanations from Gurung for the

inconsistencies, substantial evidence supports the IJ’s adverse credibility

determination. See id. at 1043-44 (holding that an inconsistency may support an

adverse credibility determination if not trivial and considered in light of the “totality

of the circumstances,” including the petitioner’s explanation for the inconsistency).


                                           2
      In the absence of credible testimony, Gurung’s asylum and withholding of

removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Because Gurung’s CAT claim is based on the same testimony found to be not

credible, that claim also fails. See id. at 1156-57.

      PETITION DENIED.




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