                                                                           FILED
                               NOT FOR PUBLICATION                          SEP 24 2010

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




                               FOR THE NINTH CIRCUIT



KAREN MARTOYAN; et al.,                            No. 07-70227

               Petitioners,                        Agency Nos.       A077-849-717
                                                                     A077-849-718
  v.                                                                 A077-849-719
                                                                     A077-849-720
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.                         MEMORANDUM *



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

                              Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Karen Martoyan and his family, natives and citizens of Armenia, petition for

review of the Board of Immigration Appeals’ order dismissing their appeal from an

immigration judge’s decision denying their application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). Our


          *
             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 is governed by 8 U.S.C. § 1252. We review for substantial evidence,

INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992), and we dismiss in part and

deny in part the petition for review.

      We lack jurisdiction to review the agency’s determination that petitioners

failed to establish extraordinary circumstances excusing the untimely filed asylum

application because it is based on disputed facts. See 8 U.S.C. § 1158(a)(3); cf.

Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007) (per curiam).

      Martoyan omitted additional incidents of harm, as well as the identity of his

attackers from his asylum application statement. See Li v. Ashcroft, 378 F.3d 959,

962 (9th Cir. 2004). He also testified inconsistently with documentary evidence

regarding where he was hospitalized in 1996. See Pal v. INS, 204 F.3d 935, 938

(9th Cir. 2000) (inconsistencies between testimony and documentary evidence

support an adverse credibility finding). Because the agency reasonably found that

Martoyan’s explanations for the discrepancies were unconvincing, substantial

evidence supports the agency’s adverse credibility determination. See Wang v.

INS, 352 F.3d 1250, 1256-57 (9th Cir. 2003). Accordingly, in the absence of

credible testimony, Martoyan’s withholding of removal claim fails. See Farah v.

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




                                          2                                   07-70227
      Martoyan’s CAT claim also fails because it is based on the same evidence

the agency found not credible, and he does not point to any evidence in the record

that would compel a finding it is more likely than not he would be tortured if he

returned to Armenia. See id. at 1156-57.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




                                           3                                  07-70227
