Oscar Beltran v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR BELTRAN,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-70779
Agency No. A088-450-582
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015 **
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
On September 23, 2015, the court granted respondent’s unopposed motion to
stay proceedings. On October 13, 2015, respondent informed the court that Oscar
Beltran is not a candidate for prosecutorial discretion, and requested that this case
move forward. The stay of proceedings is hereby lifted.
FILED
NOV 23 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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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Beltran, a native and citizen of Guatemala, petitions for review of the Board
of Immigration Appeals’ (“BIA”) order dismissing Beltran’s appeal from an
immigration judge’s decision denying his application for asylum, withholding of
removal, relief under the Convention Against Torture (“CAT”), and voluntary
departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, applying the standards
governing adverse credibility determinations created by the REAL ID Act,
Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), and we dismiss in part
and deny in part the petition for review.
We lack jurisdiction to review Beltran’s voluntary departure claim, because
he requests reconsideration of the agency’s discretionary moral character
determination. See Gil v. Holder, 651 F.3d 1000, 1006 (9th Cir. 2011) (overruling
on other grounds recognized by U.S. v. Hernandez, 769 F.3d 1059 (9th Cir. 2014))
(court lacked jurisdiction to review the agency’s discretionary denial of voluntary
departure).
We lack jurisdiction to review the agency’s finding that Beltran failed to
show changed circumstance because this determination is based on a disputed fact.
See Vahora v. Holder, 641 F.3d 1038, 1042 (9th Cir. 2011) (court may review “the
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agency’s application of the changed ... circumstances exception to undisputed
facts”) (internal citations omitted).
As to withholding of removal, substantial evidence supports the agency’s
adverse credibility determination based on the inconsistencies between Beltran’s
asylum application, declaration, and testimony, and his evasive testimony
regarding his prior arrests. See Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir.
2010) (adverse credibility determination was reasonable under the totality of the
circumstances). In the absence of credible testimony, Beltran’s withholding of
removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).
Because Beltran’s CAT claim is based on the same testimony the agency
found not credible and the record does not otherwise compel the conclusion that it
is more likely than not he will be tortured if returned to Guatemala, his CAT claim
also fails. See id. at 1156-57.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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