Victor Hugo Rivas-Barrios v. ERIC H. HOLDER Jr., Attorney General

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).
KAD/Research 06-74202
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTOR HUGO RIVAS-BARRIOS,
Petitioner,
v.
ERIC H. HOLDER Jr., Attorney General,
Respondent.
No. 06-74202
Agency No. A079-155-888
MEMORANDUM *
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2009**
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Victor Hugo Rivas-Barrios, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his application for asylum,
FILED
NOV 30 2009
MOLLY C. DWYER, CLERK
U .S. C O U R T O F AP PE ALS

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withholding of removal, and protection under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence factual findings, Husyev v. Mukasey, 528 F.3d 1172, 1177 (9th
Cir. 2008), and we review de novo due process claims, Ngongo v. Ashcroft, 397
F.3d 821, 823 (9th Cir. 2005). We deny in part and dismiss in part the petition for
review.
The record does not compel the conclusion that Rivas-Barrios established
changed or extraordinary circumstances to excuse his late filed asylum application.
See 8 C.F.R. § 1208.4(a)(4),(5). Accordingly, Rivas-Barrios’s asylum claim fails.
Rivas-Barrios’ testimony that he was attacked on account of his religion was
inconsistent with his declaration and the police report which did not mention a
religious motivation and instead indicated the attack occurred in response to Rivas-
Barrios’ previous confrontation with his attackers regarding an incident of sexual
abuse against his son. Because this incident is central to his claim, substantial
evidence supports the IJ’s adverse credibility determination. See Goel v. Gonzales,
490 F.3d 735, 739 (9th Cir. 2007). In the absence of credible testimony
establishing persecution on account of a protected ground, Rivas-Barrios’
withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156
(9th Cir. 2003).

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KAD/Research 06-74202 3
Because Rivas-Barrios’ CAT claim is based on the testimony the IJ found
not credible, and Rivas-Barrios points to no other evidence to show it is more
likely than not he would be tortured if returned to Mexico, his CAT claim fails.
See id. at 1156-57.
Rivas-Barrios’ due process contention regarding the IJ’s refusal to permit his
witness to testify fails. See Ngongo, 397 F.3d at 823-24.
We lack jurisdiction to review the IJ’s grant of voluntary departure,
see 8 U.S.C. §§ 1229c(f), 1252(a)(2)(B)(I), and therefore we dismiss the petition as
to Rivas-Barrios’ voluntary departure request.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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