                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 23 2011

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

OLLINCE TOUSSAINT,                               No. 07-73687

              Petitioner,                        Agency No. A98-546-995

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

              Respondent.


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

                            Submitted May 12, 2011***
                             San Francisco, California




       *
            Eric H. Holder, Jr. is substituted for his predecessor, Michael B.
Mukasey, as Attorney General of the United States, pursuant to Federal Rule of
Appellate Procedure 43(c)(2).
       **
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: GOULD and M. SMITH, Circuit Judges, and ST. EVE, District Judge.****

      Petitioner Ollince Toussaint, a native and citizen of Haiti, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an Immigration Judge’s (“IJ”) order denying his application for asylum,

withholding of removal, and protection under the Convention Against Torture. We

have jurisdiction under 8 U.S.C. § 1252. We review credibility findings for

substantial evidence, Liu v. Holder, – F.3d –, 2011 WL 1651244, at *4 (9th Cir.

May 3, 2011), we review de novo claims of due process violations, Colmenar v.

INS, 210 F.3d 967, 971 (9th Cir. 2000), and we review for abuse of discretion the

BIA’s denial of a motion to remand, Lin v. Holder, 588 F.3d 981, 984 (9th Cir.

2009). We deny the petition for review.

      Petitioner claims that the IJ’s conduct during the asylum hearing violated his

due process rights. Petitioner has failed, however, to demonstrate that “the

proceeding was so fundamentally unfair that [he] was prevented from reasonably

presenting his case.” Colmenar, 210 F.3d at 971 (internal quotation marks

omitted). To the contrary, petitioner was given an opportunity “to be represented

by counsel, prepare an application for . . . relief, and . . . present testimony and



        ****
            The Honorable Amy J. St. Eve, United States District Judge for the
Northern District of Illinois, sitting by designation.
                                            2
other evidence in support of the application.” Zetino v. Holder, 622 F.3d 1007,

1013 (9th Cir. 2010) (quoting Vargas-Hernandez v. Gonzales, 497 F.3d 919,

926–27 (9th Cir. 2007) (ellipses in original and internal quotation marks omitted)).

Accordingly, petitioner’s due process claim fails.

      In addition, substantial evidence supports the BIA’s affirmance of the IJ’s

adverse credibility finding. See Liu, – F.3d –, 2011 WL 1651244, at *4. As

petitioner concedes, the statements he made in his asylum application, his asylum

interview, and his removal hearing contained discrepancies, inconsistencies, and

omissions regarding his alleged experience of political persecution. Petitioner’s

testimony regarding events that preceded (and precipitated) his departure relate

directly to the basis of his asylum claim. See Chebchoub v. INS, 257 F.3d 1038,

1043 (9th Cir. 2001) (explaining that an IJ may base his credibility finding on

discrepancies and inconsistencies that relate to the basis for the alien’s alleged fear

of persecution and relate to the heart of the asylum claim).

      Finally, the BIA did not abuse its discretion in denying petitioner’s motion

to reopen where he failed to show prima facie eligibility for the relief sought.

Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063–64 (9th Cir. 2008). Nor did

petitioner establish that the “evidence sought to be offered [wa]s material and was

not available and could not have been discovered or presented at the former


                                           3
hearing.” Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987) (internal quotation

marks omitted).

      PETITION FOR REVIEW DENIED.




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