                                                                            FILED
                             NOT FOR PUBLICATION                             APR 19 2010

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




                             FOR THE NINTH CIRCUIT



HANMIN WU,                                       Nos. 06-72569
                                                      06-74314
               Petitioner,
                                                 Agency No. A095-450-201
  v.

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

               Respondent.



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

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       In these consolidated cases, Hanmin Wu, a native and citizen of China,

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

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



          *
             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).
application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”) in No. 06-72569, and the BIA’s order denying his

motions to reopen, reconsider, and accept a late filed brief in No. 06-74314. Our

jurisdiction is governed 8 U.S.C. § 1252. We review for substantial evidence

adverse credibility determinations, Tekle v. Mukasey, 533 F.3d 1044, 1051 (9th

Cir. 2008), we review for abuse of discretion denials of motions to reopen and

reconsider, and we review claims of due process violations de novo, Cano-Merida

v. INS, 311 F.3d 960, 964 (9th Cir. 2002). We deny the petition for review in No.

06-72569, and deny in part and dismiss in part the petition for review in No. 06-

74314.

      Substantial evidence supports the agency’s adverse credibility finding based

upon Wu’s failure to offer a compelling explanation for a conceded discrepancy

between his testimony before the asylum officer and his testimony before the IJ

regarding his family’s payment of money to secure his release from detention. See

Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (adverse credibility finding

supported based upon discrepancies regarding the amount of a fine assessed for

violation of one-child policy). Accordingly, in the absence of credible testimony,

we deny the petition as to Wu’s asylum and withholding of removal claims. See

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


                                          2                                      06-72569
      Because Wu’s CAT claim is based on the testimony the agency found not

credible, and he points to no other evidence showing it is more likely than not he

will be tortured if returned to China, we also deny the petition as to Wu’s CAT

claim. See id. at 1156-57.

      The BIA did not abuse its discretion in denying Wu’s motion to reopen

based upon ineffective assistance of counsel because Wu could not demonstrate

counsel’s failure to a file a timely brief to the BIA “may have affected the outcome

of the proceedings.” See Mohammed v. Gonzales, 400 F.3d 785, 794 (9th Cir.

2005) (internal quotation omitted). In particular, the BIA considered and properly

rejected Wu’s contention in his untimely brief to the BIA that lack of a certification

process for interpreters appearing at asylum interviews prejudicially violated his

due process rights. See Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000)

(requiring a showing of prejudice to prevail on a procedural due process claim).

Likewise, the BIA considered and rejected Wu’s challenge to the IJ’s adverse

credibility finding, which was supported by substantial evidence. See Li, 378 F.3d

at 962.

      The BIA did not abuse its discretion in denying Wu’s motion to reconsider

because Wu failed to identify any error of fact or law in the BIA’s April 20, 2006

order. See 8 C.F.R. § 1003.2(b)(1).


                                          3                                    06-72569
      To the extent Wu contends the BIA abused its discretion in refusing to

accept his late-filed brief, we lack jurisdiction over the BIA’s discretionary

determination. See Zetino v. Holder, 596 F.3d 517, 524-25 (9th Cir. 2010).

      No. 06-72569: PETITION FOR REVIEW DENIED.

      No. 06-74314: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.




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