                                                                           FILED
                            NOT FOR PUBLICATION                             MAR 15 2013

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




                            FOR THE NINTH CIRCUIT



GILBERT MANZANARES DELA                          No. 08-73118
CRUZ,
                                                 Agency No. A072-401-630
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                            Submitted March 13, 2013 **
                             San Francisco, California

Before: McKEOWN, CALLAHAN, and IKUTA, Circuit Judges.


       Gilbert Manzanares Dela Cruz, a native and citizen of the Philippines,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order




        *
             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).
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

application for asylum and withholding of removal. Our jurisdiction is governed

by 8 U.S.C. § 1252.

      Substantial evidence supports the agency’s adverse credibility

determination. Dela Cruz acknowledged that his testimony at his asylum interview

was inconsistent with his testimony in the hearing before the IJ, some of those

inconsistencies going to who killed a New People’s Army (“NPA”) commander

and why the NPA threatened Dela Cruz. The inconsistencies go to the heart of

Dela Cruz’s asylum claim. See Pal v. INS, 204 F.3d 935, 939–40 (9th Cir. 2000).

Dela Cruz was given an opportunity to explain these inconsistencies, but his

explanations regarding the passage of time, battlefield confusion, and personal

confusion at the hearing do not compel a contrary conclusion. See Lata v. INS, 204

F.3d 1241, 1245 (9th Cir. 2000).

      Dela Cruz’s contention that the agency erred in basing its adverse credibility

determination on his testimony to the asylum officer, because such testimony was

potentially unreliable or because Dela Cruz did not have an opportunity to cross

examine the officer, was not raised to the BIA. Therefore, we lack jurisdiction

over this claim and dismiss it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004). In the absence of credible testimony regarding past persecution or fear of


                                          2
future persecution, we deny the petition as to Dela Cruz’s asylum and withholding

of removal claims.

      DENIED IN PART; DISMISSED IN PART.




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