                                                                             FILED
                             NOT FOR PUBLICATION                              JUN 03 2011

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




                             FOR THE NINTH CIRCUIT



MAUNG SEIN WIN,                                  No. 08-71290

               Petitioner,                       Agency No. A099-401-941

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

               Respondent.



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

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Maung Sein Win, a native and citizen of Burma, petitions for review of the

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

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and relief under the Convention Against Torture (“CAT”).


          *
             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).
We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings, applying the new standards governing adverse

credibility determinations created by the Real ID Act, Shrestha v. Holder, 590 F.3d

1034, 1039 (9th Cir. 2010), and de novo claims of due process violations in

immigration proceedings, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th

Cir. 2008). We deny in part and grant in part the petition for review, and we

remand.

      We reject Win’s assertion that the his due process rights were violated by

issues with the translation during his hearing. See Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (requiring error and substantial prejudice for a petitioner to

prevail on a due process claim).

      The record does not compel the conclusion that Win established changed or

extraordinary circumstances excusing the untimely filing of his asylum application.

See 8 C.F.R. § 1208.4(a); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.

2007) (per curiam); Mutuku v. Holder, 600 F.3d 1210, 1212 (9th Cir. 2010).

Accordingly, Win’s asylum claim fails.

      The agency found Win not credible based on inconsistencies between his

asylum application, his witness’ testimony, and his own testimony regarding his

political activities in Burma and whether he endured any harm there. Substantial


                                           2                                    08-71290
evidence supports the agency’s adverse credibility determination. See Shrestha,

590 F.3d at 1040-44 (adverse credibility determination was reasonable under the

Real ID Act’s “totality of the circumstances”); Malkandi v. Holder, 576 F.3d 906,

917-19 (9th Cir. 2009).

      However, Win argues, as he did before the BIA, that he presented evidence

independent of his credibility demonstrating his eligibility for relief based on his

political activities in the United States. He contends the testimony of Dr. Aung

Khin, the credibility of whom the IJ did not address, independently demonstrated

he participated in demonstrations in the United States against the Burmese

government as a part of the Committee for the Restoration of Democracy in

Burma, and an article indicating the Burmese embassy monitors activities of

Burmese exiles in the United States established his activities would come to the

attention of the Burmese government and place him in danger of arrest,

persecution, and torture as a political dissident. The BIA failed to address Win’s

contentions, only affirming the IJ’s finding that Win was not credible. Therefore,

we grant the petition with respect to Win’s withholding of removal and CAT

claims and remand for the BIA to address them in the first instance. See Brezilien

v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (remanding where BIA failed to




                                           3                                    08-71290
address petitioner’s claim); see also INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




                                          4                                  08-71290
