                                                                           FILED
                             NOT FOR PUBLICATION                            APR 24 2012

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




                             FOR THE NINTH CIRCUIT



DUNQUAN CAI,                                     No. 08-70673

               Petitioner,                       Agency No. A095-308-598

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

               Respondent.



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

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Dunquan Cai, a native and citizen of China, petitions pro se 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,

and relief under the Convention Against Torture (“CAT”). We have jurisdiction


          *
             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).
under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual

findings, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001), and review de

novo due process claims, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We

deny the petition for review.

      Substantial evidence supports the IJ’s adverse credibility determination

because the discrepancy between Cai’s testimony and his asylum application

statement regarding the contraband religious materials Chinese customs officials

allegedly seized from his luggage is a substantial inconsistency that goes to the

heart of his claim. See Chebchoub, 257 F.3d at 1043. Substantial evidence also

supports the IJ’s adverse credibility determination based on Cai’s failure to provide

any corroboration of his religious activities in the United States. See Mejia-Paiz v.

INS, 111 F.3d 720, 723-24 (9th Cir. 1997). Cai’s explanations for the

discrepancies do not compel a contrary conclusion. See Lata v. INS, 204 F.3d

1241, 1245 (9th Cir. 2000). In the absence of credible testimony, Cai’s asylum and

withholding of removal claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003).

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

credible and he points to no other evidence in the record that shows it is more

likely than not he will be tortured in China, his CAT claim fails. See id. at 1156-


                                          2                                    08-70673
57.

      We reject Cai’s claims that the IJ violated his due process rights by

exhibiting bias, because the proceedings were not so fundamentally unfair that he

was prevented from reasonably presenting his case, and because he failed to

demonstrate prejudice. See Torres-Chavez v. Holder, 567 F.3d 1096, 1100 (9th

Cir. 2009); Lata, 204 F.3d at 1246 (requiring prejudice for a petitioner to prevail

on a due process claim).

      Cai’s motion for the appointment of counsel is denied.

      PETITION FOR REVIEW DENIED.




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