                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 13 2010

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




                            FOR THE NINTH CIRCUIT



TARSEM SINGH,                                    No. 06-72536

              Petitioner,                        Agency No. A079-560-327

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

              Respondent.



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

                            Submitted October 5, 2010 **
                             San Francisco, California

Before: RYMER and N.R. SMITH, Circuit Judges, and LEIGHTON, District
Judge.***

       Tarsem Singh, a native and citizen of India, petitions for review of the

decision by the Board of Immigration Appeals (BIA) denying his application for


        *
             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).
        ***
            The Honorable Ronald B. Leighton, United States District Judge for
the Western District of Washington, sitting by designation.
asylum, withholding of removal, and relief under the Convention Against Torture

(CAT). The BIA affirmed the immigration judge’s (IJ) denial of relief based upon

adverse credibility grounds. We have jurisdiction over this matter pursuant to 8

U.S.C. § 1252(a)(1). We deny the petition for review.

      Substantial evidence supports the BIA’s adverse credibility finding. The

BIA identified two reasons for its finding—(1) the inconsistency between Singh’s

affidavit and his testimony and (2) the inconsistency between Singh’s statements in

his asylum interview (as reported in the asylum officer’s Assessment of Referral)

and his testimony. Singh did not challenge the BIA’s finding that his affidavit was

inconsistent with his testimony, thus he waived any challenge on this ground. See

Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005). To the extent the

issue is not waived, substantial evidence supports the BIA’s adverse credibility

determination that (1) Singh’s statements in his testimony and affidavit regarding

details of Singh’s first arrest were inconsistent and undermined Singh’s claim of

persecution and (2) Singh was unable to provide a satisfactory explanation for this

inconsistency.

      Even if the IJ should not have admitted the Assessment of Referral, there

was no prejudice in its admission. Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.

2000) (“A showing of prejudice is essentially a demonstration that the alleged

violation affected the outcome of the proceedings . . . .” (citation omitted)).
Singh’s affidavit and the Assessment of Referral contained the same facts that were

inconsistent with his testimony. Thus, the admission of the Assessment did not

affect the outcome of the proceedings.

      In the absence of credible testimony, Singh failed to demonstrate eligibility

for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003). Because Singh’s CAT claim is based on the same testimony found

to be not credible, and he points to no other evidence the IJ should have

considered, substantial evidence also supports the denial of CAT relief. See id. at

1156-57.

      PETITION FOR REVIEW DENIED.
