                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 19 2010

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




                             FOR THE NINTH CIRCUIT



 PALWINDER KAUR,                                  No. 07-71108

               Petitioner,                        Agency No. A073-419-767

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

               Respondent.



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

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Palwinder Kaur, a native and citizen of India, petitions for review of a Board

of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration

judge’s decision denying her application for relief under the Convention Against



          *
             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).

JLA/Research
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review factual

findings for substantial evidence, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85

(9th Cir. 2006), and we review de novo claims of due process violations,

Iturribarria v. INS, 321 F.3d 889, 894 (9th Cir. 2003). We deny the petition for

review.

       On July 26, 2006, the court issued a memorandum disposition that

concluded substantial evidence supported the agency’s adverse credibility finding,

and, thus, that Kaur’s asylum and withholding of removal claims failed. See Kaur

v. Gonzales, 2006 WL 2073772 (9th Cir. July 26, 2006). The court remanded

Kaur’s CAT claim because the BIA did not address it. On remand, the BIA denied

Kaur’s CAT claim and Kaur petitions for review of that decision.

       Even if Kaur properly raised her CAT claim to the BIA, substantial evidence

supports the BIA’s denial of the claim because it is based on the same testimony

found to be not credible and Kaur points to no evidence to show a clear probability

of torture if she is returned to India. See Farah v. Ashcroft, 348 F.3d 1153, 1156-

57 (9th Cir. 2003).

       We reject Kaur’s contention that the BIA violated her due process rights by

not remanding her CAT claim to the immigration judge because Kaur did not file a

motion for remand, or otherwise indicate the need for further fact-finding, but


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instead rested her argument solely on her testimony. See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (to prevail on a due process claim petitioner must show

error and prejudice); 8 C.F.R. § 1003.1(d)(3)(iv) (“A party asserting that the Board

cannot properly resolve an appeal without further factfinding must file a motion for

remand.”).

       PETITION FOR REVIEW DENIED.




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