                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 19 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

BALDEV SINGH,                                    No. 05-76657

              Petitioner,                        Agency No. A078-637-895

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

              Respondent.



BALDEV SINGH,                                    No. 09-70549

              Petitioner,                        Agency No. A078-637-895

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                            Submitted April 16, 2010**
                             San Francisco, California

Before: ARCHER,*** CALLAHAN, and BEA, Circuit Judges.

      Baldev Singh (“Baldev”), a native and citizen of India, petitions for review

of the Board of Immigration Appeals’s (“BIA”) order denying his application for

asylum, withholding of removal, and relief under the Convention Against Torture

(“CAT”). The Immigration Judge (“IJ”) denied Baldev’s asylum application

because it was untimely. The IJ found Baldev was not credible, denied his

applications for withholding of removal and CAT relief, and ordered him removed.

The BIA affirmed. Baldev also petitions for review of the BIA’s denial of his

motion to reopen his removal proceedings. We deny both petitions.

1.    We lack jurisdiction to grant Baldev relief with respect to his asylum claim.

An alien must demonstrate by clear and convincing evidence that he filed an

asylum application within one year after the date he arrived in the United States. 8

U.S.C. § 1158(a)(2)(B). The IJ found Baldev arrived in the United States on or

about February 1, 1999, but did not file an asylum application until June 12, 2000.



        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Glenn L. Archer, Jr., Senior United States Circuit
Judge for the Federal Circuit, sitting by designation.

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We lack jurisdiction to review the IJ’s factual determination regarding the

timeliness of Baldev’s asylum application. Id. § 1158(a)(3). Although we have

jurisdiction to review constitutional and legal issues with respect to timeliness,

Baldev has raised no such issues on appeal. Id. § 1252(a)(2)(D).

2.    Substantial evidence supports the IJ’s finding that Baldev was not credible.

We will uphold an adverse credibility finding so long as the IJ or the BIA provided

at least one “specific, cogent reason” that “go[es] to the heart of [the] asylum

claim.” Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (citations and internal

quotation marks omitted). Here, the IJ cited specific inconsistencies between

Baldev’s asylum application and his testimony on which it based its finding that

Baldev was not credible. These inconsistencies go to the heart of Baldev’s claim

that he was persecuted by Indian police.

      First, Baldev wrote in his asylum application that when Indian police

arrested him in 1991 they questioned him about funeral donations he collected for

his cousin’s funeral. However, Baldev testified that when the police arrested him

in 1991 they asked him where his cousin was located. He also testified that his

cousin did not die until 1992 or 1993. Second, Baldev wrote in his asylum

application that he received medical treatment after his third arrest and that he went

into hiding three months later. However, he testified that he did not receive


                                           3
medical treatment after his third arrest and that he went into hiding a few days

later. Baldev failed adequately to explain these inconsistencies.

      Because substantial evidence supported the IJ’s adverse credibility finding,

the BIA did not err when it denied Baldev’s application for withholding of

removal. See id. at 964 (holding that an alien is not eligible for withholding of

removal unless he can prove it is more like than not that he will be persecuted on

account of a statutorily protected ground). Further, the BIA did not err when it

denied Baldev’s application for CAT relief because Baldev failed to show “it is

more likely than not that he . . . will be tortured if removed to [India].” 8 C.F.R.

§ 208.16(c)(2).

3.    The BIA did not abuse its discretion when it denied Baldev’s motion to

reopen his removal proceedings as untimely. A motion to reopen proceedings

must be filed within 90 days of a final removal order. 8 U.S.C. § 1229(c)(7)(C)(i).

The BIA entered its final removal order on October 24, 2005, but Baldev did not

file a motion to reopen until November 6, 2008. None of the exceptions to the 90-

day filing deadline apply. See 8 C.F.R. § 1003.2(c)(3).

      We lack jurisdiction to consider whether equitable tolling should have

extended the 90-day filing deadline because Baldev failed to raise the issue before

the BIA. See 8 U.S.C. § 1252(d)(1); Zara v. Ashcroft, 383 F.3d 927, 930–31 (9th


                                           4
Cir. 2004). Further, because Baldev failed to raise the equitable tolling issue, the

BIA did not violate his procedural due process rights when it failed to consider

equitable tolling. See Ibarra-Flores v. Gonzales, 439 F.3d 614, 620–21 (9th Cir.

2006) (holding that no due process violation exists unless an alien proves “the

proceeding was so fundamentally unfair that the alien was prevented from

reasonably presenting his case” (citation and internal quotation marks omitted)).

      Finally, we lack jurisdiction to review the BIA’s decision not to reopen

Baldev’s removal proceedings on its own motion. Ekimian v. INS, 303 F.3d 1153,

1159 (9th Cir. 2002).

      DISMISSED in part; DENIED in part.




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