NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 20 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MUSTAFA TANIN, No. 17-71871 Petitioner, Agency No. A206-317-913 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 8, 2018 Portland, Oregon Before: TALLMAN and IKUTA, Circuit Judges, and BOUGH,** District Judge. Mustafa Tanin, a native and citizen of Afghanistan, petitions for review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252, and we dismiss in part and deny in part the petition. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. We review the BIA’s credibility finding for substantial evidence and reverse only if “the evidence compels a contrary result.” Almaghzar v. Gonzales, 457 F.3d 915, 920 (9th Cir. 2006) (quotations and citation omitted); see also Shrestha v. Holder, 590 F.3d 1034, 1044–45 (9th Cir. 2010). “[A]n adverse credibility determination may be supported by omissions [in an application] that are not details, but new allegations that tell a much different—and more compelling— story of persecution than [the] initial application.” Silva-Pereira v. Lynch, 827 F.3d 1176, 1185–86 (9th Cir. 2016) (quotations and citation omitted). At Tanin’s second merits hearing, he testified that the Taliban burned him on his back with a hot iron, even though he had not mentioned the incident in any of the earlier proceedings or in his asylum application. This attack was one of two physical attacks he allegedly suffered, and thus was a compelling new allegation rather than just a detail. See id. Therefore, substantial evidence supports the BIA’s adverse credibility finding. Tanin’s past persecution claim also fails. The last analysis of Tanin’s claim was by the BIA on his first appeal, when it determined Tanin had not offered sufficient evidence of past persecution. Tanin improperly relies on evidence that was introduced or corroborated at the second merits hearing, which was not in the record before the BIA on his first appeal. On remand from the first appeal, Tanin did not argue that his past persecution claim should have been reanalyzed using 2 new evidence produced at the second merits hearing. It stands unchallenged. See Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (concluding that a petitioner only exhausts claims he raises and argues in his brief to the BIA). Because Tanin did not argue that evidence introduced or corroborated at the second merits hearing should be applied to his past persecution claim at the appropriate time, the claim he now presses before us is unexhausted, and Tanin cannot rely on this later introduced evidence to prove up his past persecution claim. We lack jurisdiction to ...
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