                              NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                              FOR THE NINTH CIRCUIT                           NOV 23 2015

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

OSCAR BELTRAN,                                    No. 13-70779

               Petitioner,                        Agency No. A088-450-582

 v.
                                                  MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted November 18, 2015 **

Before:        TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.

      On September 23, 2015, the court granted respondent’s unopposed motion to

stay proceedings. On October 13, 2015, respondent informed the court that Oscar

Beltran is not a candidate for prosecutorial discretion, and requested that this case

move forward. The stay of proceedings is hereby lifted.


          *
             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).
      Beltran, a native and citizen of Guatemala, petitions for review of the Board

of Immigration Appeals’ (“BIA”) order dismissing Beltran’s appeal from an

immigration judge’s decision denying his application for asylum, withholding of

removal, relief under the Convention Against Torture (“CAT”), and voluntary

departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual 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), and we dismiss in part

and deny in part the petition for review.

      We lack jurisdiction to review Beltran’s voluntary departure claim, because

he requests reconsideration of the agency’s discretionary moral character

determination. See Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011) (overruling

on other grounds recognized by U.S. v. Hernandez, 769 F.3d 1059 (9th Cir. 2014))

(court lacked jurisdiction to review the agency’s discretionary denial of voluntary

departure).

      We lack jurisdiction to review the agency’s finding that Beltran failed to

show changed circumstance because this determination is based on a disputed fact.

See Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011) (court may review “the




                                            2                                 13-70779
agency’s application of the changed ... circumstances exception to undisputed

facts”) (internal citations omitted).

      As to withholding of removal, substantial evidence supports the agency’s

adverse credibility determination based on the inconsistencies between Beltran’s

asylum application, declaration, and testimony, and his evasive testimony

regarding his prior arrests. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir.

2010) (adverse credibility determination was reasonable under the totality of the

circumstances). In the absence of credible testimony, Beltran’s withholding of

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

      Because Beltran’s CAT claim is based on the same testimony the agency

found not credible and the record does not otherwise compel the conclusion that it

is more likely than not he will be tortured if returned to Guatemala, his CAT claim

also fails. See id. at 1156-57.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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