                                                                         FILED
                      UNITED STATES COURT OF APPEALS                      FEB 01 2010

                                                                      MOLLY C. DWYER, CLERK
                              FOR THE NINTH CIRCUIT                    U.S . CO U RT OF AP PE A LS




 SATYA WATI,                                       Nos. 06-75199
                                                        07-71348
               Petitioner,
                                                   Agency No. A070-345-157
   v.

 ERIC H. HOLDER Jr., Attorney General,             ORDER

               Respondent.



Before:       B. FLETCHER, LEAVY, and RYMER, Circuit Judges.

        Wati's petition for panel rehearing is granted. The memorandum disposition

filed on October 21, 2009 is withdrawn. A replacement memorandum disposition

will be filed concurrently with this order.

        No further filings shall be accepted in this closed case.




RA/Research
                                                                               FILED
                             NOT FOR PUBLICATION                                FEB 01 2010

                                                                            MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                         U.S . CO U RT OF AP PE A LS




                              FOR THE NINTH CIRCUIT



 SATYA WATI,                                       Nos. 06-75199
                                                        07-71348
               Petitioner,
                                                   Agency No. A070-345-157
   v.

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

               Respondent.



                       On Petitions for Review of Orders of the
                           Board of Immigration Appeals

                             Submitted October 13, 2009**

Before:        B. FLETCHER, LEAVY, and RYMER, Circuit Judges.

        In these consolidated petitions, Satya Wati, a native and citizen of Fiji,

petitions for review of the Board of Immigration Appeals' ('BIA') order

dismissing her appeal from an immigration judge's decision denying her



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).

RA/Research                                                          06-75199/07-71348
application for asylum, withholding of removal and protection under the

Convention Against Torture ('CAT'), and the BIA's order denying her motion to

reopen. We have jurisdiction under 8 U.S.C. y 1252. We review for substantial

evidence findings of fact, Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001),

de novo constitutional violations, and for abuse of discretion the denial of a motion

to reopen, Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir. 2004). We deny both

petitions for review.

       Substantial evidence supports the BIA's adverse credibility finding based on

the omission from Wati's asylum application of her beating, rape and interrogation

by Fijian natives and its omission of her brother's arrest and beating, see Li v.

Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004), and based on Wati's failure to explain

these the omissions when given the opportunity, see Kaur v. Gonzales, 418 F.3d

1061, 1066-67 (9th Cir. 2005). Accordingly, in the absence of credible testimony,

Wati's asylum and withholding of removal claims fail. See Farah v. Ashcroft, 348

F.3d 1153, 1156 (9th Cir. 2003).

       Because Wati's CAT claim is based on the same statements found to be not

credible, and she does not point to any other evidence in the record that compels

the conclusion that it would be more liµely than not that she would be tortured if




RA/Research                                2                       06-75199/07-71348
returned to Fiji, substantial evidence supports the BIA's denial of CAT. See id. at

1156-1157.

       The BIA did not abuse its discretion in denying Wati's motion to reopen

because it considered the record and acted within its broad discretion in

determining that the evidence was insufficient to warrant reopening given the

adverse credibility determination. See Malhi v. INS, 336 F.3d 989, 994 (9th Cir.

2003) (upholding denial of motion to remand to adjust status where applicant

failed to maµe out a prima facie case of eligibility for relief); Cano-Merida v. INS,

311 F.3d 960, 966 (9th Cir. 2002). It follows that the BIA did not violate Wati's

due process rights by denying her motion to continue. See Lata v. INS, 204 F.3d

1241, 1246 (9th Cir. 2000) (requiring error and prejudice for a due process

violation).

       PETITIONS FOR REVIEW DENIED.




RA/Research                               3                       06-75199/07-71348
