                                                                            FILED
                             NOT FOR PUBLICATION                             APR 20 2011

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




                             FOR THE NINTH CIRCUIT



NEWTON ARAUJO DINIZ,                             No. 08-70754

               Petitioner,                       Agency No. A079-519-463

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

               Respondent.



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

                              Submitted April 5, 2011 **

Before:        B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Newton Araujo Diniz, a native and citizen of Brazil, petitions for review of

the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”), and


          *
             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).
cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for substantial evidence factual findings, Don v. Gonzales, 476 F.3d 738,

741 (9th Cir. 2007), and we review de novo due process claims, Vasquez-Zavala v.

Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We deny in part and dismiss in part

the petition for review.

      Araujo Diniz does not challenge the IJ’s dispositive finding that his

application for asylum was untimely. Accordingly, his asylum claim fails.

      Although the IJ found Araujo Diniz’s claim that he was arrested in 1979

credible, she found his testimony that he was arrested in 1989 to be inconsistent

with his asylum application and his testimony regarding his future fear to be

implausible. Substantial evidence supports the adverse credibility determination

because Araujo Diniz omitted the key event that caused him to leave Brazil and his

testimony that he was arrested by members of the military regime, which was no

longer in power in 1989, is implausible. See Husyev v. Mukasey, 528 F.3d 1172,

1182-83 (9th Cir. 2008) (omission of details that go to the heart of the claim can

support an adverse credibility finding); Jibril v. Gonzales, 423 F.3d 1129, 1135

(9th Cir. 2005) (testimony that is implausible based on the background evidence

can be the basis for an adverse credibility finding). Araujo Diniz’s explanations do

not compel a contrary result. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000).


                                          2                                     08-70754
In light of the adverse credibility finding, Araujo Diniz’s withholding of removal

claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

         Substantial evidence supports the agency’s denial of CAT relief because

Araujo Diniz failed to establish it is more likely than not that he will be tortured if

returned to Brazil. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009).

         In light of our conclusion that the IJ made an express adverse credibility

determination, we reject Araujo Diniz’s contention that he was denied due process

by the IJ’s failure to do so. See Toufighi v. Mukasey, 538 F.3d 988, 994-95 (9th

Cir. 2008) (IJ’s qualifying remarks were sufficient to qualify as an express adverse

credibility determination); Lata, 204 F.3d at 1246 (petitioner must show error and

prejudice to establish a due process violation).

         We lack jurisdiction over the IJ’s discretionary determination that Araujo

Diniz did not demonstrate “exceptional and extremely unusual hardship,” and

Araujo Diniz has not presented a colorable constitutional claim for us to review.

See Martinez-Rosas v. Gonzales, 424 F.3d 926, 930 (9th Cir. 2005).

         PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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