                                                                                 FILED
                                  NOT FOR PUBLICATION                            NOV 30 2011

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



                                  FOR THE NINTH CIRCUIT

 CARLOS ANTONIO LEZAMA-                              No. 06-74703
 GARCIA,
                                                     Agency No. A75-479-222
              Petitioner,
                                                     MEMORANDUM*
   v.

 ERIC H. HOLDER, Jr., Attorney
 General,

              Respondent.


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

                                 Submitted November 5, 2010**
                                     Pasadena, California

Before: GOODWIN and RAWLINSON, Circuit Judges, and SEABRIGHT, ***
District Judge.

        Carlos Antonio Lezama-Garcia (“Lezama”), a native and citizen of


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
       The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
        ***
          The Honorable J. Michael Seabright, United States District Judge for the
District of Hawaii, sitting by designation.
Nicaragua, petitions (among other grounds) for review of a decision of the Board

of Immigration Appeals (“BIA”) upholding a decision of an immigration judge

(“IJ”) denying his application for asylum, withholding of removal, and relief under

the Convention against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C.

§ 1252(a), and we deny the petition as to those grounds.

      Review of the BIA’s decision to deny applications for asylum or

withholding of deportation is for substantial evidence. The reviewing court

upholds the BIA’s decision if it is “supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” INS v. Elias-Zacarias,

502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). “To reverse the BIA

finding [the court] must find that the evidence not only supports that conclusion,

but compels it[.]” Id. at 481 n.1.

      The IJ denied Lezama’s asylum application, specifically finding him not

credible. He relied on major inconsistencies between Lezama’s testimony and his



      1
        In this memorandum disposition, we consider only Lezama’s claims
regarding asylum, withholding of removal, and CAT relief. In a concurrently-filed
opinion, we address his claims that the IJ and BIA erred in determining he was an
inadmissible arriving alien who had abandoned his application for adjustment of
status under Section 202 of the Nicaraguan Adjustment and Central American
Relief Act, Pub. L. No. 105-100, 111 Stat. 2160 (Nov. 19, 1997) (codified as
amended in statutory notes following 8 U.S.C. § 1255).

                                         2
current and prior asylum applications. The BIA found substantial evidence in the

record to support the adverse credibility finding.2

      In this petition for review, Lezama does not challenge the adverse credibility

finding. He does not argue that the record lacks substantial evidence of credibility,

or that the IJ failed to give “specific, cogent reasons” for his stated disbelief. See

Mendoza Manimbao v. Ashcroft, 329 F.3d 655, 658 (9th Cir. 2003). And he does

not argue that inconsistencies were minor, that they did not go to the heart of an

asylum claim, or that he was not given a chance to explain inconsistencies. See id.

at 660; Don v. Gonzales, 476 F.3d 738, 741 (9th Cir. 2007).

      By failing to challenge adverse credibility, Lezama waives the claim. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259 (9th Cir. 1996); Quan v. Gonzales,

428 F.3d 883, 890 (9th Cir. 2005). Accordingly, Lezama is ineligible for asylum.

See Kasnecovic v. Gonzales, 400 F.3d 812, 815 (9th Cir. 2005); Farah v. Ashcroft,

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

      2
         Pre-REAL ID Act standards apply. The REAL ID Act created new, or
modified, standards to assess adverse credibility determinations. See, e.g.,
Shrestha v. Holder, 590 F.3d 1034, 1039 (9th Cir. 2010). The new standards,
however, apply only to applications for asylum, withholding of removal, and CAT
relief made on or after May 11, 2005 (the effective date of the REAL ID Act).
Lezama applied for asylum and withholding on March 9, 2005 -- before the
effective date. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3 (9th Cir. 2009)
(applying pre-REAL ID Act standards because the petitioner’s asylum application
was filed before May 11, 2005).

                                           3
      In any event, even if Lezama did not waive a challenge to the adverse

credibility finding, our review of the record indicates that substantial evidence

supports the finding. The IJ gave specific, cogent reasons for disbelieving Lezama,

including substantial inconsistencies in his testimony, and he was given a

reasonable opportunity to explain inconsistencies. See Mendoza Manimbao, 329

F.3d at 661-62.

      Moreover, even assuming Lezama’s testimony was credible, the record does

not compel the conclusion that Lezama was persecuted on account of his political

opinion, or that he is unable to avail himself of the protection available in

Nicaragua. See Navas v. INS, 217 F.3d 646, 655-56 (9th Cir. 2000).

       Because Lezama failed to establish asylum, his claim for withholding of

removal necessarily fails. See Fisher v. INS, 79 F.3d 955, 960-61 (9th Cir. 1996)

(en banc). The record also contains no evidence that could establish a claim for

CAT relief. See Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005).

      PETITION FOR REVIEW DENIED IN PART.




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