Win Myo Htet 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.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WIN MYO HTET,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 07-71736
Agency No. A078-642-260
MEMORANDUM*
WIN MYO HTET,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 08-74672
Agency No. A078-642-260
On Petition for Review of an Order of the
Board of Immigration Appeals
FILED
FEB 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Suzanne B. Conlon, United States District Judge for***
the Northern District of Illinois, sitting by designation.
07-71736
Submitted February 17, 2011**
San Francisco, California
Before: TALLMAN and CALLAHAN, Circuit Judges, and CONLON,
District Judge.***
In these consolidated petitions for review, Win Myo Htet, a native and
citizen of Burma, petitions for review of the orders of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an immigration judge’s decision
denying his application for asylum, withholding of removal, and protection under
the Convention Against Torture (“CAT”), and denying his motion to reopen. We
have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence an
adverse credibility finding, Rivera v. Mukasey, 508 F.3d 1271, 1274 (9th Cir.
2007), and we review for abuse of discretion the denial of a motion to reopen,
Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010). We deny the petitions for
review.
Substantial evidence supports the agency’s adverse credibility finding based
on the omission from Htet’s asylum application of his arrest, beating, and
interrogation by the Burmese authorities. See Alvarez-Santos v. INS, 332 F.3d

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07-71736 3
1245, 1254 (9th Cir. 2003) (petitioner’s omission of a “dramatic pivotal event”
from his asylum application supports adverse credibility determination). The
agency reasonably rejected Htet’s explanations for the omission. See Rivera, 508
F.3d at 1275. In the absence of credible testimony, Htet failed to demonstrate
eligibility for asylum or withholding of removal. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Because Htet’s CAT claim is based on testimony the agency found not
credible, and no other evidence in the record compels a finding that it is more
likely than not he would be tortured if he returned to Burma, his CAT claim also
fails. See id. at 1156-57.
The BIA did not abuse its discretion in denying Htet’s motion to reopen
because it was untimely, see 8 C.F.R. § 1003.2(c)(2), and Htet failed to
demonstrate changed country conditions sufficient to qualify for the regulatory
exception to the time limit for filing motions to reopen, see 8 C.F.R. §
1003.2(c)(3)(ii); see also Toufighi v. Mukasey, 538 F.3d 988, 996-97 (9th Cir.
2008) (evidence must demonstrate prima facie eligibility for relief); Najmabadi,
597 F.3d at 991 (change in personal circumstances does not qualify as change in
country conditions). Finally, we reject Htet’s contention that, because the BIA

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07-71736 4
granted a motion to reopen in a subsequent case, the BIA abused its discretion in
denying his motion to reopen.
PETITIONS FOR REVIEW DENIED.

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