                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 11 2010

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




                            FOR THE NINTH CIRCUIT



RUSLAN DOVGANYUK; OKSANA                         No. 05-74789
SHVED,
                                                 Agency Nos. A079-393-618
             Petitioners,                                   A079-393-619

  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 February 1, 2010
                               Pasadena, California

Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.

       Ruslan Dovganyuk and his wife Oksana Shved, natives of the Soviet Union

and citizens of Ukraine, seek review of the Board of Immigration Appeals’

(“BIA”) decision that adopted the Immigration Judge’s (“IJ”) denial of their

applications for asylum, withholding of removal and protection under the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Convention Against Torture (“CAT”). The decision was grounded upon an

adverse credibility finding.

         The adverse credibility finding was supported by substantial evidence.

Following a lengthy recess of the petitioner’s hearing, he attempted to buttress his

claim of political persecution by asserting that he had written poems criticizing the

government for a political newspaper. The newspaper communications were not,

however, mentioned in his original affidavit accompanying his request for asylum,

nor were they mentioned in a second affidavit filed sometime later. This

inconsistency is sufficient to support the IJ’s adverse credibility finding. See Li v.

Ashcroft, 378 F.3d 959, 964 (9th Cir. 2004).

         Petitioner asks us to consider psychological evidence explaining his memory

loss and contends it constitutes evidence to explain his confusion. We can assume

that the petitioner’s mental confusion has an understandable medical basis, but to

prevail, he must establish that there is some compelling basis in the record on

which to find that he suffered from persecution on account of his political opinion.

Given the adverse credibility finding, which we must uphold, there is no such

basis.

         There is similarly no basis on which to conclude that it is more likely than

not that petitioners will be tortured if they are returned to Ukraine.


                                            2
The petition for review is DENIED.




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