Altansoyombo Tumentur v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 25 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ALTANSOYOMBO TUMENTUR, No. 15-73628 Petitioner, Agency No. A205-311-662 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted August 17, 2022** Before: S.R. THOMAS, PAEZ, and LEE, Circuit Judges. Altansoyombo Tumentur, a native and citizen of Mongolia, petitions pro se for review of the Board of Immigration Appeals’ order dismissing his appeal from an immigration judge’s (“IJ”) decision denying his applications for withholding of removal and protection under the Convention Against Torture (“CAT”). Our * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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 under the REAL ID Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny in part and dismiss in part the petition for review. Substantial evidence supports the agency’s adverse credibility determination based on inconsistencies between Tumentur’s declaration and his testimony regarding when and how his employment ceased, the basis of his fear, and his whistleblowing activities. See id. at 1047 (adverse credibility finding reasonable under the totality of the circumstances). Tumentur’s explanations do not compel a contrary conclusion. See Lata v. INS, 204 F.3d 1241, 1245 (9th Cir. 2000). Thus, in the absence of credible testimony, in this case, Tumentur’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). To the extent Tumentur contends the IJ erred and violated his right to due process in her credibility analysis, we lack jurisdiction to review this claim because he did not exhaust it before the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks jurisdiction to review claims not presented to the agency). In his opening brief, Tumentur does not raise, and therefore waives, any challenge to the agency’s determination that he did not establish eligibility for 2 15-73628 protection under CAT. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079-80 (9th Cir. 2013) (issues not specifically raised and argued in an opening brief are waived). The temporary stay of removal remains in place until the mandate issues. PETITION FOR REVIEW DENIED in part; DISMISSED in part. 3 15-73628 15-73628 Court of Appeals for the Ninth Circuit ca9 9th Cir. Altansoyombo Tumentur v. Merrick Garland 25 August 2022 Agency Unpublished fbbf970d107ebfa6225a205404d805039d38b57c

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