                                                                              FILED
                            NOT FOR PUBLICATION                               SEP 27 2013

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



                            FOR THE NINTH CIRCUIT


NICHOLAS NYAGA KARANJA,                          No. 12-70232

              Petitioner,                        Agency No. A087-095-314

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

              Respondent.


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

                      Argued and Submitted August 29, 2013
                              Pasadena, California

Before: O’SCANNLAIN, BEA, and CHRISTEN, Circuit Judges.

       Nicholas Karanja, a native and citizen of Kenya, petitions for review of the

Board of Immigration Appeals’ (BIA) decision affirming the immigration judge’s

(IJ) denial of his applications for asylum, withholding of removal, and CAT relief.

We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. Karanja’s

motion to remand filed September 10, 2013 is denied.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Karanja contends: (1) the removal proceedings were procedurally unfair; and

(2) substantial evidence does not support the BIA’s adverse credibility

determination. Specifically, Karanja argues the IJ failed to advise him of the

availability of pro bono assistance as required by 8 C.F.R. § 1240.10(a) in violation

his due process rights. But the IJ recommended Karanja seek free legal services

from two particular pro bono organizations, including one that visited the barracks

where Karanja was detained, and granted Karanja multiple continuances to obtain

counsel. The IJ also “specifically [inquired] as to whether [Karanja] wishe[d] to

continue without a lawyer” and “receive[d] a knowing and voluntary affirmative

response.” Hernandez-Gil v. Gonzales, 476 F.3d 803, 806 (9th Cir. 2007).

Karanja does not argue that his waiver of the right to counsel was invalid.

      The record shows the IJ did not rely on counsel Carrye Washington’s

concession that Karanja failed to apply for asylum within the one-year deadline.

Karanja also contends the BIA erred by relying on statements made by counsel

Brigit Alvarez after she expressed an intent to withdraw. But Alvarez was the

counsel of record at the time her statements were made, and she had authority to

make the challenged statements. Further, Karanja did not show that he was

prejudiced by Alvarez’s representation.

      Karanja’s application for asylum was properly denied because it was

untimely and Karanja did not show extraordinary circumstances related to the
delay in filing. See Singh v. Holder, 656 F.3d 1047, 1052 (9th Cir. 2011).

      The BIA’s adverse credibility determination was based on inconsistencies in

Karanja’s testimony. Karanja testified that he was persecuted in Kenya because he

is a homosexual. But it is undisputed that Karanja had two significant heterosexual

relationships in the United States; he was married to one woman and fathered a

child with another woman. The BIA’s determination that Karanja’s testimony was

not sufficiently corroborated does not compel reversal. See Aden v. Holder, 589

F.3d 1040, 1046 (9th Cir. 2009). We cannot conclude that “any reasonable

adjudicator would be compelled to conclude to the contrary.” Rizk v. Holder, 629

F.3d 1083, 1087 (9th Cir. 2011).

      In the absence of credible testimony, Karanja failed to establish eligibility

for withholding of removal. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir.

2003). Because Karanja’s CAT claim was based on the same testimony, and

because Karanja failed to offer any other evidence showing he will more likely

than not be tortured if returned to Kenya, his CAT claim also fails. See Shrestha v.

Holder, 590 F.3d 1034, 1048–49 (9th Cir. 2010).

             PETITION DENIED.
