                                                                              FILED
                            NOT FOR PUBLICATION                               APR 22 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


ARNOLD G. LACSON,                                No. 05-72987

              Petitioner,                        Agency No. A015-550-672

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

              Respondent.



ARNOLD G. LACSON,                                No. 05-75208

              Petitioner,                        Agency No. A015-550-672

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted March 17, 2011
                           San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: REAVLEY, McKEOWN, and PAEZ, Circuit Judges.**

      In No. 05-72988, Arnold Lacson, a native and citizen of the Philippines,

petitions for review of an order of the Board of Immigration Appeals (BIA)

affirming the Immigration Judge’s (IJ) denial of his application for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). In No. 05-75208, Lacson petitions for review of the BIA’s denial of his

motion to reconsider. We deny both petitions.

      Lacson sought relief based on past persecution and fear of future persecution

due to his membership in a Filipino youth organization known as the Kabataang

Makabayan (KM). The IJ found Lacson not credible because of inconsistencies in

his original asylum application, a subsequent declaration, and his live testimony.

The BIA determined that although no single inconsistency would lead it to believe

Lacson’s claims were untrue, a “constellation of problems” led it to agree with the

IJ’s credibility assessment.

      “Where, as here, the BIA adopts the immigration judge’s decision and also

adds its own reasons, we review both decisions.” Nuru v. Gonzales, 404 F.3d

1207, 1215 (9th Cir. 2005). Because Lacson filed his asylum application before



       **
          The Honorable Thomas M. Reavley, Senior United States Circuit Judge
for the Fifth Circuit, sitting by designation.
                                         2
the May 2005 effective date of the REAL ID Act, we apply pre-REAL ID Act

standards. See Kaur v. Gonzales, 418 F.3d 1061, 1064 n.1 (9th Cir. 2005). We

review the adverse credibility findings for substantial evidence, which requires that

the BIA’s finding be upheld unless the evidence in the record compels a contrary

result. Li v. Holder, 629 F.3d 1154, 1157 (9th Cir. 2011).

      Lacson argues that the IJ’s adverse credibility determination was based on

trivial or non-existent inconsistencies, impermissible speculation and conjecture,

and an erroneous view of the record.1 We cannot conclude, however, that the

record compels a conclusion that Lacson was credible.

      “Minor inconsistencies in the record that do not relate to the basis of an

applicant’s alleged fear of persecution, go to the heart of the asylum claim, or

reveal anything about an asylum applicant’s fear for his safety are insufficient to

support an adverse credibility finding.” Mendoza Manimbao v. Ashcroft, 329 F.3d



      1
        Lacson argues that the IJ erroneously believed he had sworn to the validity
of his claims before an asylum officer, and he moves us to take judicial notice of
INS documents in support of his assertion that he never actually had such an
asylum hearing. Our review generally “is confined to the administrative record
before the BIA,” but we may “tak[e] judicial notice of the agency’s own records.”
Dent v. Holder, 627 F.3d 365, 371 (9th Cir. 2010). We therefore grant the motion,
but we note that the Government has not argued that an asylum officer afforded
Lacson a hearing. Furthermore, the documents do not alter our analysis because,
as we explain below, we find the IJ’s credibility determination supported by
substantial evidence.
                                          3
655, 660 (9th Cir. 2003). However, “so long as one of the identified grounds is

supported by substantial evidence and goes to the heart of [Lacson’s] claim of

persecution, we are bound to accept the IJ’s adverse credibility finding.” Li v.

Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004) (internal quotation marks and citation

omitted).

      Here, Lacson’s original asylum application, subsequent declaration, and live

testimony contained inconsistencies concerning when he and his brother Orlando

joined the KM, the extent of his participation in that organization, when Orlando

was allegedly killed by police, and whether Orlando’s body was ever recovered.

Lacson’s claim of persecution was based on alleged police abuse due to his and his

brother’s participation with the KM. The inconsistencies in the time and manner of

Orlando’s death, which Lacson claimed the police covered up, and the time line of

Lacson’s own participation in the KM went to the heart of his claim. Because

there was some basis to doubt Lacson’s credibility, the IJ could also consider the

absence of corroborating evidence. See Li, 378 F.3d at 964. Lacson argues that he

provided such evidence because he presented the death certificate of his other

brother, Nelson, showing death caused by traumatic head injuries. This evidence

provided no insight into when and where the death occurred or how the injuries

were sustained, however, and fails to support his claim of persecution by police.


                                          4
Lacson correctly observes that corroborating evidence may be required only if it is

easily obtained, see Sidhu v. INS, 220 F.3d 1085, 1091–92 (9th Cir. 2000), yet he

fails to explain why he could not present evidence from his Aunt Carmelita, whose

address he had been using since arriving in the United States. We conclude that

the IJ relied upon cogent reasons to doubt Lacson’s credibility, and because the

record does not compel a contrary conclusion, we uphold the denial of asylum and

withholding of removal. Li, 378 F.3d at 964.

      Lacson argues that he was denied due process because he was not given

notice and an opportunity to address the IJ’s credibility concerns. See Mendoza

Manimbao, 329 F.3d at 659. We disagree. Lacson was questioned extensively

regarding many of the inconsistencies noted by the IJ in his adverse credibility

ruling. Moreover, the examples Lacson points to–namely, inconsistencies

regarding the size of his jail cell and the philosophical underpinnings of the

KM–do not go to the heart of his asylum claim. Thus, even assuming arguendo he

was not given a sufficient opportunity to explain these inconsistencies, such error

would be harmless. There were a number of inconsistent statements, apart from

those referenced by Lacson as supporting his due process argument, that fully

support the IJ’s adverse credibility determination.




                                          5
      Lacson also argues that he was denied due process because the IJ based his

adverse credibility determination on Lacson’s failure to present live testimony by

his Aunt Carmelita without giving him prior notice. Again, we disagree. We have

held that an adverse credibility determination may not be based on a failure to

produce a corroborating witness when a petitioner has already produced

documentary evidence of a fact to which the witness would testify. See Chen v.

Ashcroft, 362 F.3d 611 (9th Cir. 2004). We have also held, however, that “if the

trier of fact either does not believe the applicant or does not know what to believe,

the applicant’s failure to corroborate his testimony can be fatal to his asylum

application.” Sidhu, 220 F.3d at 1090. There was therefore no due process

violation in this case when the IJ noted that Lacson’s failure to produce his aunt

further diminished the credibility of his inconsistent testimony.

      Finally, Lacson argues that the IJ erroneously based the denial of relief

under the CAT on the same set of adverse credibility findings used to deny asylum

and withholding of removal. Although a failure to establish eligibility for asylum

does not necessarily defeat a CAT claim, Lacson relies on the same evidence that

the IJ and BIA found not credible in support of both claims, and he points to no

additional evidence that should have been considered. Because we affirm the

denial of asylum and withholding of removal based on the adverse credibility


                                          6
findings, we similarly uphold the denial of the CAT claim. See Farah v. Ashcroft,

348 F.3d 1153, 1156–57 (9th Cir. 2003).

      MOTION FOR JUDICIAL NOTICE GRANTED. PETITIONS

DENIED.




                                          7
