NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT RUDI IRAWAN, ) No. 09-72223 ) Petitioner, ) Agency No. A095-585-462 ) v. ) MEMORANDUM * ) ERIC H. HOLDER, Jr., Attorney ) General, ) ) Respondent. ) )

On Petition for Review of an Order of the Board of Im m igration Appeals Subm itted October 7, 2013 * * Pasadena, California Before: FERNANDEZ, PAEZ, and HURWITZ, Circuit Judges. Rudi Irawan, a native and citizen of Indonesia, petitions for review of the Board of Im m igration Appeals’ (BIA) determ ination that he had filed a frivolous 

# FILED
OCT 18 2013 M OLLY 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 unanim ously finds this case suitable for decision without oral argum ent. Fed. R. App. P. 34(a)(2).application for asylum , 1 and its denial of his application for asylum , 2 withholding

of rem oval 3 and Convention Against Torture relief. 4 We deny the petition. The BIA’s factual determ inations can be reversed only if the petitioner can “show that the evidence he presented was so compelling that no reasonable factfinder could fail” to find the contrary. INS v. Elias-Zacarias, 502 U.S. 478, 483–84, 112 S. Ct. 812, 817, 117 L. Ed. 2d 38 (1992). (1) Irawan asserts that the BIA erred when it determ ined that he had filed a frivolous asylum application when he fabricated facts about attacks on his parents’ business properties. See 8 U.S.C. § 1158(d)(6); 8 C.F.R. § 1208.20. We disagree. There can be no doubt that he did just that. His retraction of the fabricated facts when after years of proceedings it becam e apparent that his asylumapplication would be denied and he had found an

1 8 U.S.C. § 1158(d)(4)(A), (d)(6).
2 8 U.S.C. § 1158.
3 8 U.S.C. § 1231(b)(3).
4 United Nations Convention Against Torture and Other Cruel, Inhum an or Degrading Treatm ent or Punishm ent, adopted Dec. 10, 1984, S. Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, im plem ented at 8 C.F.R. § 1208.18. 2alternate basis for relief fromrem oval 5 did not preclude a frivolity finding. 6

Moreover, the written warnings in the asylum application were proper notice of the consequences of filing a frivolous application. See 8 U.S.C. § 1158(d)(4)(A); Cheem a v. Holder, 693 F.3d 1045, 1049 (9th Cir. 2012). Finally, his fabrication was a “m aterial elem e nt” of his claim . See 8 C.F.R. § 1208.20. It was a m aterial or im portant part of the claimitself. See Khadka v. Holder, 618 F.3d 996, 1003 (9th Cir. 2010); In re B– Y–, 25 I. & N. Dec. 236, 241 (BIA 2010); see also In re Y– L–, 24 I. & N. Dec. 151, 155 (BIA 2007). His other assertions regarding persecution failed to support his claim . He plainly had a “reasonable opportunity to present evidence on his behalf.” Colm enar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). Thus, his fabrication precluded asylum relief. It also precluded adjustm ent of status relief. See Ahir v. Mukasey, 527 F.3d 912, 915–16 (9th Cir. 2008). (2) On the evidence before the BIA, even before the fabricated evidence
was rem oved fromthe m ix, the BIA determ ined that Irawan had not dem onstrated that he was entitled to asylum relief; he has not m e t the heavy burden of showing that the record com

pels a contrary conclusion. See Elias-Zacari as, 502 U.S. at

5 He sought adjustm ent of status through his wife. See 8 U.S.C. § 1255.
6 See Kulakchyan v. Holder, No. 09-71185, slip op. at 6 (9th Cir. Sept. 18, 2013); see also Chen v. Mukasey, 527 F.3d 935, 943 (9th Cir. 2008); In re X– M– C–, 25 I. & N. Dec. 322, 322 (BIA 2010). 3483–84, 112 S. Ct. at 817; Zehatye v. Gonzales, 453 F.3d 1182, 1185 (9th Cir.

2006). And his strongest evidence 7 evaporated with the fall of his fabricated claim
. His failure to show a sufficient basis for asylum relief necessarily showed an insufficient basis for withholding relief. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003); Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). 8 Petition DENIED.

7 See, e.g., Korablina v. INS, 158 F.3d 1038, 1043–44 (9th Cir. 1998) (violence against fam ily m e m bers); Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991) (sam e ).

8 In passing, Irawan suggests that he should have been granted CAT relief, but he did not list that as an issue and did not present argum ent in his briefs to support that form of relief. See Fed. R. App. P. 28(a)(5), (a)(9)(A). We will not consider that waived claim
. See W. Radio Servs. Co. v. Qwest Corp., 678 F.3d 970, 979 (9th Cir.), cert. denied, __ U.S. __, 133 S. Ct. 758, 184 L. Ed. 2d 499 (2012); Sm ith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). 4