                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 19 2010

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




                            FOR THE NINTH CIRCUIT



WAQQAS HAMID KHAN,                               No. 06-70302

              Petitioner,                        Agency No. A079-634-061

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

              Respondent.



WAQQAS HAMID KHAN,                               No. 07-71153

              Petitioner,                        Agency No. A079-634-061

  v.

ERIC H. HOLDER, JR., Attorney General,

              Respondent.



                      On Petitions for Review of Orders of the
                          Board of Immigration Appeals




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted October 4, 2010 **
                             San Francisco, California

Before: BEEZER, KLEINFELD, and GRABER, Circuit Judges.


      We review two decisions by the Board of Immigration Appeals: one

affirming the denial of Waqqas Hamid Khan’s application for withholding of

removal and protection under the Convention Against Torture, under 8 U.S.C. §

1231(b)(3), and the second denying Khan’s motion to reopen, under 8 U.S.C. §

1229a(c)(7).




      The Board affirmed the Immigration Judge’s finding that Khan failed to

establish a clear probability of persecution due to his inconsistent account and

discrepancies in supporting documentation. The Immigration Judge’s adverse

credibility finding was supported by substantial evidence, including discrepancies

between Khan’s oral and written testimony. Lata v. INS, 204 F.3d 1241, 1245 (9th

Cir. 2000). The Board therefore did not err in affirming the denial of Khan’s

application for withholding of removal and protection under the Convention

Against Torture.



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          2
      The Board also did not abuse its discretion in denying Khan’s motion to

reopen, which was untimely. 8 C.F.R. § 1003.2(c). The 90-day deadline can be

equitably tolled by a finding of ineffective assistance of counsel. Iturribarria v.

INS, 321 F.3d 889, 897 (9th Cir. 2003). To prevail, Khan must show resulting

prejudice by demonstrating how the outcome of the proceedings might have been

affected. Munoz v. Ashcroft, 339 F.3d 950, 955 (9th Cir. 2003).




      Khan failed to show prejudice resulting from ineffective assistance of

counsel. Khan asserts that counsel should have arranged for his father’s

appearance as a witness, but failed to explain how his father’s testimony would

have affected the outcome, given other discrepancies in his documentation and

testimony. Khan therefore failed to show prejudice resulting from his father’s

nonappearance as a witness or other behavior by counsel.




      PETITION DENIED.




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