                                                                             FILED
                              NOT FOR PUBLICATION                            OCT 20 2014

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



                              FOR THE NINTH CIRCUIT


ELINA KOSTENKO, AKA Elina                          No. 13-70365
Yevgenievna Kostenko,
                                                   Agency No. A096-231-407
                Petitioner,

  v.                                               MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

                Respondent.


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

                              Submitted October 14, 2014**

Before:        LEAVY, GOULD, and BERZON, Circuit Judges.

          Elina Kostenko, a native and citizen of Ukraine, petitions for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an

immigration judge’s decision denying her 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 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). We deny the petition for review.

      Substantial evidence supports the agency’s adverse credibility determination

based on inconsistencies within Kostenko’s testimony, and unresponsive answers

to questions. See id. at 1048 (totality of the circumstances supported adverse

credibility determination). Kostenko’s explanations do not compel a contrary

conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). In the absence

of credible testimony, Kostenko’s asylum and withholding of removal claims fail.

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

      Because Kostenko’s CAT claim is based on the same testimony the BIA

found not credible, and the record does not otherwise compel the conclusion that it

is more likely than not that she will be tortured if returned to Ukraine, her CAT

claim also fails. See id. at 1156-57.

      PETITION FOR REVIEW DENIED.




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