                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          APR 12 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

MAMUN BIN AZAM,                                  Nos. 07-70431
                                                      07-71546
               Petitioner,
                                                 Agency No. A071-502-600
  v.

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

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       In these consolidated petitions for review, Mamun Bin Azam, a native and

citizen of Bangladesh, petitions for review of the Board of Immigration Appeals’

(“BIA”) orders dismissing his appeal from an immigration judge’s (“IJ”) decision



          *
             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).
denying his applications for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”), and denying his motion to reopen based

on ineffective assistance of counsel. We have jurisdiction pursuant to 8 U.S.C.

§ 1252. We review for substantial evidence an adverse credibility determination.

Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002). We review for abuse of

discretion the denial of a motion to reopen and review de novo questions of law,

including claims of ineffective assistance of counsel. Mohammed v. Gonzales, 400

F.3d 785, 791-92 (9th Cir. 2005). We deny the petition for review in No. 07-

70431, and we grant the petition for review in No. 07-71546.

      Substantial evidence supports the IJ’s adverse credibility determination

based on the discrepancies between Azam’s documentary evidence and his

testimony regarding his membership activities, on whose behalf he campaigned,

and when he was attacked. See Kohli v. Gonzales, 473 F.3d 1061, 1071 (9th Cir.

2007) (discrepancies between petitioner’s testimony, declaration and letter of

membership substantially support adverse credibility finding). Because at least

one of the identified grounds underlying the IJ’s adverse credibility finding is

supported by substantial evidence and goes to the heart of the claim of persecution,

we are bound to accept the negative credibility finding. See Li v. Ashcroft, 378

F.3d 959, 964 (9th Cir. 2004). In the absence of credible testimony, Azam’s


                                          2                                      07-70431
asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003).

      Because Azam’s CAT claim is based on the same testimony the IJ found not

credible, and he points to no other evidence the IJ should have considered,

substantial evidence supports the IJ’s denial of protection under CAT. See id. at

1156-57.

      Azam supported his motion to reopen with an affidavit in which he averred

that his former counsel never discussed cancellation of removal with him, or filed

an application on his behalf despite the IJ’s repeated admonition that Azam

appeared to be eligible for that form of relief. See Castillo-Perez v. INS, 212 F.3d

518, 526 (9th Cir. 2000) (counsel’s failure to file an application for relief results in

ineffective assistance of counsel). The BIA abused its discretion in denying

Azam’s motion to reopen, where it failed to accept the facts in his affidavit as true

and it engaged in speculation as to counsel’s motives for not filing the application.

Bhasin v. Gonzales, 423 F.3d 977, 987 (9th Cir. 2005) (facts presented in affidavits

must be accepted as true unless inherently unbelievable).

      No. 07-70431:        PETITION FOR REVIEW DENIED.

      No. 07-71546:        PETITION FOR REVIEW GRANTED.




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