                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 26 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

KUMAR AJAY,                                     No.    18-71496

                Petitioner,                     Agency No. A213-016-992

 v.
                                                MEMORANDUM*
WILLIAM P. BARR, Attorney General,

                Respondent.

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

                          Submitted February 19, 2019**

Before:      FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

      Kumar Ajay, a native and citizen of India, 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

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


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
findings, applying the standards governing adverse credibility determinations

created by the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th

Cir. 2010). We deny in part and dismiss in part the petition for review.

      Substantial evidence supports the agency’s adverse credibility determination

based on inconsistencies between Ajay’s credible fear interview and his testimony,

as well as an inconsistency between Ajay’s testimony and documentary evidence

as to the nature of his father’s death. See Shrestha, 590 F.3d at 1048 (adverse

credibility finding reasonable under the totality of the circumstances). Ajay’s

explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241,

1245 (9th Cir. 2000). Thus, in the absence of credible testimony, in this case,

Ajay’s asylum and withholding of removal claims fail. See Wang v. Sessions, 861

F.3d 1003, 1009 (9th Cir. 2017).

      Ajay’s CAT claim also fails because it is based on the same testimony that

the agency found not credible, and Ajay does not point to any other evidence in the

record that compels the conclusion that it is more likely than not he would be

tortured by or with the consent or acquiescence of the government of India. See

id.

      Ajay has waived any challenge to the agency’s denial of his due process

claims. See Rizk v. Holder, 629 F.3d 1083, 1091 n.3 (9th Cir. 2011) (issues not

raised in an opening brief are waived).


                                          2                                   18-71496
      We lack jurisdiction to consider Ajay’s contentions regarding his credible

fear interview because he did not raise them to the agency. See Barron v. Ashcroft,

358 F.3d 674, 677-78 (9th Cir. 2004).

      We reject as meritless Ajay’s contention of misconduct by the IJ.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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