                                                                           FILED
                               NOT FOR PUBLICATION                          JAN 08 2010

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




                               FOR THE NINTH CIRCUIT



 BASTIAN HUTAPEA; UMEISA                           No. 06-71619
 SINAMBELA,
                                                   Agency Nos. A096-346-398
               Petitioners,                                    A096-346-399

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

               Respondent.



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

                              Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        Bastian Hutapea and his wife, Umeisa Sinambela, natives and citizens of

Indonesia, petition for review of the Board of Immigration Appeals’ order

dismissing their appeal from an immigration judge’s decision denying their

          *
             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).

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application for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s adverse credibility

determination, Gui v. INS, 280 F.3d 1217, 1225 (9th Cir. 2002), and dismiss in part

and deny in part the petition for review.

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

failed to demonstrate changed circumstances excusing the untimely filing of their

asylum application because the underlying facts are disputed. Cf. Ramadan v.

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

dismiss the petition as to the asylum claim.

       Substantial evidence supports the agency’s adverse credibility determination

because Hutapea’s testimony about the harm his mother-in-law suffered was

materially inconsistent with his prior testimony and declarations. See Kohli v.

Gonzales, 473 F.3d 1061, 1071 (9th Cir. 2007). In the absence of credible

testimony, Hutapea failed to establish eligibility for withholding of removal. See

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

       Finally, because Hutapea’s CAT claim is based on the same testimony the

agency found not credible, and he points to no other evidence the agency should




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have considered, substantial evidence supports the agency’s denial of CAT relief.

See id. at 1156-57.

       PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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