                                                                             FILED
                             NOT FOR PUBLICATION                              MAY 04 2011

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




                             FOR THE NINTH CIRCUIT



SURINDER SINGH,                                   No. 07-71169

               Petitioner,                        Agency No. A097-604-808

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

               Respondent.



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

                             Submitted April 20, 2011 **

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

       Surinder Singh, a native and citizen of India, petitions 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”). Our jurisdiction is


          *
             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).
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s

factual findings, Cortez-Pineda v. Holder, 610 F.3d 1118, 1121 (9th Cir. 2010),

and we deny in part and dismiss in part the petition for review.

      We lack jurisdiction to review the IJ’s determination that Singh’s asylum

application was untimely because that finding is based on disputed facts. See 8

U.S.C. § 1158(a)(3); cf. Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007)

(per curiam). Accordingly, we dismiss the petition as to Singh’s asylum claim.

      Substantial evidence supports the IJ’s adverse credibility determination

because Singh’s testimony was materially inconsistent with his asylum application

regarding the circumstances of his alleged June 1999 arrest, see Chebchoub v. INS,

257 F.3d 1038, 1043 (9th Cir. 2001), and his explanation does not compel a

contrary conclusion, see Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2006). In the

absence of credible testimony, Singh’s withholding of removal claim fails. See

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

      Because Singh’s CAT claim is based on the same evidence the IJ found not

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

would be tortured if he returns to India, Singh’s CAT claim also fails. See id. at

1156-57.




                                          2                                    07-71169
      Finally, in light of our conclusion that substantial evidence supports the IJ’s

adverse credibility determination, we reject Singh’s contention that the IJ violated

due process by failing to conclude, based on his evidence, that his asylum

application was timely filed. See Lata, 204 F.3d at 1246 (requiring error and

prejudice to prevail on due process claim).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                          3                                     07-71169
