                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 26 2016

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



                             FOR THE NINTH CIRCUIT


OSAMA FAROUK BADAWAY ABDEL                       No. 12-74233
MALEK,
                                                 Agency Nos.         A088-272-532
               Petitioner,

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

               Respondent.


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

                             Submitted January 20, 2016**

Before:        CANBY, TASHIMA, and NGUYEN, Circuit Judges.

      Osama Farouk Badaway Abdel Malek, a native and citizen of Egypt,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his

application for asylum, withholding of removal, and relief under the Convention

          *
             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).
Against Torture (“CAT”), and determining Abdel Malek filed a frivolous asylum

application. We have jurisdiction under 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 review de novo

questions of law, including frivolous application determinations, Liu v. Holder,

640 F.3d 918, 925 (9th Cir. 2011). We deny in part and grant in part the petition

for review, and we remand.

      The BIA determined that, under the totality of circumstances, significant

omissions from Abdel Malek’s asylum application provided an adequate basis for

the IJ’s adverse credibility finding. Substantial evidence supports the agency’s

adverse credibility determination based on Abdel Malek’s omission of

mistreatment by Egyptian police, including beatings and the denial of insulin, from

his detailed asylum application. See Shrestha, 590 F.3d at 1048 (adverse

credibility determination reasonable under the “totality of circumstances”); see

also Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011) (“Material alterations

in the applicant’s account of persecution are sufficient to support an adverse

credibility finding.”). The agency considered and properly rejected Abdel Malek’s

explanations for the omissions. See Zamanov, 649 F.3d at 974. Further, Abdel


                                          2                                      12-74233
Malek’s corroborative evidence does not rehabilitate his testimony. See Garcia v.

Holder, 749 F.3d 785, 791 (9th Cir. 2014). In the absence of credible testimony,

Abdel Malek’s asylum and withholding of removal claims fail. See Farah v.

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

      Substantial evidence also supports the agency’s denial of Abdel Malek’s

CAT claim because it was based on the same evidence found not credible and the

record does not otherwise compel the finding that it is more likely than not Abdel

Malek would be tortured by or with the consent or acquiescence of the government

if returned to Egypt. See Shrestha, 590 F.3d at 1048-49. We reject Abdel Malek’s

contention that the agency did not consider record evidence.

      Finally, the record does not establish by a preponderance of the evidence

that Abdel Malek deliberately fabricated a material element of his asylum

application. See Liu, 640 F.3d at 930 (concluding that the particular

inconsistencies and omissions the agency relied on for its supported credibility

determination did not meet the heightened requirements for a frivolousness

finding). Thus, we grant the petition as to the frivolousness finding and remand

this case to the agency for further proceedings consistent with this disposition. See

INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).




                                          3                                    12-74233
Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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