                                                                            FILED
                             NOT FOR PUBLICATION                             NOV 01 2010

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




                             FOR THE NINTH CIRCUIT



TAJUDDIN ISMAIL,                                  No. 07-73308

               Petitioner,                        Agency No. A096-494-189

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

               Respondent.



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

                             Submitted October 19, 2010 **

Before:        O’SCANNLAIN, LEAVY, and TALLMAN, Circuit Judges.

       Tajuddin Ismail, a native and citizen of Pakistan, 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 protection under the Convention Against Torture (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence, Li v.

Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004), and we deny the petition for review.

      The record does not compel the conclusion that changed or extraordinary

circumstances excused Ismail’s untimely filed asylum application. See 8 C.F.R.

§ 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir. 2007)

(per curiam). Accordingly, Ismail’s asylum claim fails.

      Substantial evidence supports the agency’s adverse credibility determination

because Ismail admitted his testimony at his asylum interview was inconsistent

with his hearing testimony concerning his participation in political rallies and the

circumstances surrounding the 1998 rally and his second arrest, see Li, 378 F.3d at

962, and the agency reasonably rejected Ismail’s explanation for the

inconsistencies, see Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). We

reject Ismail’s contention that the IJ violated his due process rights by admitting

the asylum officer’s notes in the officer’s absence. See Espinoza v. INS, 45 F.3d

308, 310 (9th Cir. 1995). In the absence of credible testimony, Ismail failed to

establish eligibility for withholding of removal. See Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003).

      Because Ismail’s CAT claim is based on the same evidence the agency

found not credible, and Ismail points to no other evidence showing it is more likely


                                           2                                    07-73308
than not he would be tortured if returned to Pakistan, his CAT claim also fails. See

id. at 1157.

      PETITION FOR REVIEW DENIED.




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