                                                                                FILED
                             NOT FOR PUBLICATION                                 JUN 20 2011

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



                             FOR THE NINTH CIRCUIT


TITO MATUNOG FAMACION and                        No. 07-74466
MARIA TERESITA MONTINOLA
FAMACION,                                        Agency Nos. A071-628-640
                                                             A071-628-641
              Petitioners,

  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 June 14, 2011
                            San Francisco, California

Before: SCHROEDER and BEA, Circuit Judges, and ANELLO, District Judge.**

       Petitioner Tito Matunog Famacion, a native and citizen of the Philippines,

petitions this court for review of the Board of Immigration Appeals (BIA)’s denial

of his application for asylum, withholding of removal, and relief under the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Michael M. Anello, District Judge for the U.S. District
Court for Southern California, San Diego, sitting by designation.
Convention Against Torture (CAT). Famacion further contends the BIA erred

when it declined to address the Immigration Judge (IJ)’s determination that

Famacion provided material support to a terrorist organization, 8 U.S.C.

§ 1182(a)(3)(IV), thus rendering him ineligible for voluntary departure under 8

U.S.C. § 1229c(a)(1). We have jurisdiction pursuant to 8 U.S.C. § 1252. We deny

the petition.1

       Substantial evidence supports the IJ’s adverse credibility finding against

Famacion. The IJ noted several inconsistencies in Famacion’s testimony as to the

timeline of his and his wife’s purported persecution and arrival in the United Sates.

In addition, the IJ noted that Famacion became flustered during his testimony,

paused at great lengths, and appeared to be at a loss for words. We give the IJ

“special deference to a credibility determination that is based on demeanor.” Jibril

v. Gonzales, 423 F.3d 1129, 1137 (9th Cir. 2005) (internal quotation marks

omitted). Because Famacion was not credible, his asylum, withholding of

removal, and CAT claims were properly denied.2




       1
         Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.
       2
          Moreover, even had Famacion testified credibly, the unfulfilled threats to
which he testified do not rise to the level of persecution which would render him
eligible for relief. Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000).
      We decline to address Famacion’s contention that the BIA erred when it

failed to address the IJ’s determination that Famacion had provided material

support to a terrorist organization. Famacion did not raise this issue in his opening

brief to this court. Thus, he has waived it. Absent “manifest injustice,” we review

only issues which “are argued specifically and distinctly in a party’s opening

brief.” Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 2004). In view of the

adverse credibility finding, there is little prospect that his denial as to provision of

material support to a terrorist organization would be believed. In any event, no

manifest injustice will result from our holding that Famacion waived this

issue—which goes only to the IJ’s discretionary withholding of voluntary

departure.

      The petition for review is DENIED.
