                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 26 2010

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




                             FOR THE NINTH CIRCUIT



ARTURO RENGIFO-CHUMBE;                           No. 03-73254
ARTURO ALBERTO RENGIFO-
AVENDANO; EMPARATRIZ GLADYS                      Agency Nos.
AVENDANO-DE RENGIFO,                                          A029-925-434
                                                              A029-925-433
              Petitioners,                                    A029-925-435
                                                              A029-925-436
  v.

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

              Respondent.



ARTURO RENGIFO CHUMBE;                           No. 04-71410
ARTURO ALBERTO RENGIFO
AVENDANO; EMPARATRIZ GLADYS                      Agency Nos.
AVENDANO DE RENGIFO; RICHARD                                  A029-925-434
HENRY RENGIFO AVENDANO,                                       A029-925-433
                                                              A029-925-435
              Petitioners,                                    A029-925-436

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted May 10, 2010
                             San Francisco, California

Before: HUG, RYMER and McKEOWN, Circuit Judges.

      Arturo Rengifo-Chumbe (“Petitioner”), his wife, Emparatriz Rengifo, and

their son, Arturo Alberto, all natives and citizens of Peru, appeal the Board of

Immigration Appeals’ (“BIA”) affirmance of an immigration judge’s denial of

their application for asylum and withholding of removal and the BIA’s denial of

their motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review

for substantial evidence an adverse credibility determination. Gui v. INS, 280 F.3d

1217, 1225 (9th Cir. 2002). We review for abuse of discretion the denial of a

motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791 (9th Cir. 2005). We

deny the petition for review.

      Substantial evidence supports the BIA’s adverse credibility determination.

Because Petitioner provided inconsistent statements regarding whether the Shining

Path fired gunshots at him and whether a threat was made by the Shining Path in

1999, the adverse credibility finding is supported. See Don v. Gonzales, 476 F.3d

738, 741 (9th Cir. 2007) (holding that an inconsistency going to the heart of alien’s



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claim supported an adverse credibility finding); Singh v. Ashcroft, 367 F.3d 1139,

1143 (9th Cir. 2004) (upholding adverse credibility finding based on

inconsistencies). Without credible testimony, the asylum and withholding of

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

      The BIA did not abuse its discretion in denying the motion to reopen

because the evidence that was presented to the BIA was not newly discovered

evidence which could not have been previously presented. See 8 C.F.R. §

1003.2(c)(1); Ramon-Sepulveda v. INS, 743 F.2d 1307, 1310 (9th Cir. 1984)

(holding that birth certificate was not newly discovered evidence that could not

have been previously presented).

      The BIA’s mistaken reference to India does not require remand because the

BIA repeatedly referred to Peru and the Shining Path and the BIA’s reference was

a clerical error which was harmless. See Chowdhury v. INS, 249 F.3d 970, 973 n.2




                                         3
(9th Cir. 2001). The BIA also did not err in failing to consider new evidence of

country conditions because it was not relevant on appeal.1

      PETITION DENIED.




      1
        Counsel for Rengifo submitted a letter to the panel dated May 14, 2010,
which attached letters that were not in the certified administrative record. We do
not consider extra-record evidence on appeal absent unusual circumstances. Lowry
v. Barnhart, 329 F.3d 1019, 1024 (9th Cir. 2003). Even if we considered this
evidence as an “inadvertent omission[] from the record,” which may warrant our
consideration of the evidence, Lowry, 329 F.3d at 1024, this evidence is not
probative of what medication Rengifo was taking at the time of his immigration
hearing, which is the relevant question in this petition.

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