                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 02 2012

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




                              FOR THE NINTH CIRCUIT



JORGE ANIBAL CIFUENTES-                           No. 09-70332
HERNANDEZ,
                                                  Agency No. A097-907-752
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Jorge Anibal Cifuentes-Hernandez, a native and citizen of Guatemala,

petitions pro se for review of the Board of Immigration Appeals’ order dismissing

his appeal from an immigration judge’s decision denying his application for




          *
             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).
asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de

novo questions of law and for substantial evidence factual findings, Husyev v.

Mukasey, 528 F.3d 1172, 1177 (9th Cir. 2008), applying the new standards

governing adverse credibility determinations created by the REAL ID Act,

Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). We deny the petition for

review.

      The record does not compel the conclusion that Cifuentes-Hernandez

established changed or extraordinary circumstances excusing his untimely asylum

application. See 8 C.F.R. § 1208.4(a)(4), (5). Accordingly, we deny the petition as

to his asylum claim.

      Substantial evidence supports the agency’s adverse credibility finding based

both on the omission from Cifuentes-Hernandez’s asylum application of his

brother’s death and on inconsistencies between his application, his sworn

statement, and his testimony regarding the basis for his claim. See Shrestha, 590

F.3d at 1048 (adverse credibility finding reasonable under totality of

circumstances). Further, the agency was not compelled to accept his explanations.

See Zamanov v. Holder, 649 F.3d 969, 974 (9th Cir. 2011). Accordingly, in the




                                          2                                  09-70332
absence of credible testimony, his withholding of removal claim fails. See Farah

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

      In addition, Cifuentes-Hernandez’s CAT claim fails because it is based on

the same statements the agency found not credible, and the record does not

otherwise compel a finding it is more likely than not he would be tortured if

returned to Guatemala. See id. at 1156-57.

      Finally, Cifuentes-Hernandez’s due process claims are belied by the record.

      PETITION FOR REVIEW DENIED.




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