                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 23 2012

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




                             FOR THE NINTH CIRCUIT



FENG ZHAO,                                       No. 08-74176

               Petitioner,                       Agency No. A096-497-434

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

               Respondent.



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

                             Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Feng Zhao, a native and citizen of China, petitions for review of the

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

immigration judge’s decision denying his applications for asylum, withholding of

removal, relief under the Convention Against Torture (“CAT”), a waiver under


          *
             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).
8 U.S.C. § 1182(i) (“section 212(i) waiver”), and adjustment of status. Our

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

the agency’s findings of fact, including adverse credibility determinations.

Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir. 2011). We deny in part and

dismiss in part the petition for review.

      Substantial evidence supports the agency’s adverse credibility determination

on the basis of the omission from Zhao’s asylum application and testimony to an

asylum officer that four police officers held him down and forcibly removed his

Falun Gong tattoo while he was in custody. See id. (“Material alterations in the

applicant’s account of persecution are sufficient to support an adverse credibility

finding.”). The agency reasonably rejected Zhao’s explanation for the omission.

See Rivera v. Mukasey, 508 F.3d 1271, 1275 (9th Cir. 2007). In the absence of

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

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

      Because Zhao’s CAT claim is made on the basis of the same testimony the

agency found not credible, and Zhao does not point to any other evidence that

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

returned to China, his CAT claim also fails. See id. at 1157.

      We lack jurisdiction to review the agency’s denial of Zhao’s section 212(i)


                                           2                                     08-74176
waiver. See 8 U.S.C. § 1182(i)(2); Corona-Mendez v. Holder, 593 F.3d 1143,

1146 (9th Cir. 2010). Further, we lack jurisdiction to consider Zhao’s unexhausted

contention that it was not necessary for him to seek a section 212(i) waiver. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                          3                                   08-74176
