Reyes v. Holder

FILED
NOT FOR PUBLICATION MAR 17 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

YOVANY ALBERTO REYES; ELVYN No. 07-72561
ARNOLDO MAZARIEGOS,
Agency Nos. A096-385-765
Petitioners, A096-385-766

v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

February 15, 2011 **

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Yovany Alberto Reyes and Elvyn Arnoldo Mazariegos, natives and citizens

of Guatemala, petition for review of the Board of Immigration Appeals’ order

dismissing their appeal from an immigration judge’s (“IJ”) decision denying their

application for asylum, withholding of removal, and protection under the

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We review for substantial evidence factual findings, Singh v. Gonzales,

439 F.3d 1100, 1105 (9th Cir. 2006), and we deny the petition for review.

The record does not compel the conclusion that petitioner’s late-filed asylum

application is excused by any changed or extraordinary circumstances. See 8

C.F.R. §§ 1208(a)(4) (5); Dhital v. Mukasey, 532 F.3d 1044, 1050 (9th Cir. 2008).

Accordingly, we deny the petition as to their asylum claim.

Substantial evidence supports the agency’s adverse credibility determination

because of inconsistencies regarding Reyes’ age when his mother was attacked, the

date of the attack, and the date of his mother’s resignation letter. The

inconsistencies go to the heart of petitioners’ claims. See Chebchoub v. INS, 257

F.3d 1038, 1043 (9th Cir. 2001) (sustaining adverse credibility determination

where claims “were implausible in light of the background evidence”); Pal v. INS,

204 F.3d 935, 938 (9th Cir. 2000) (sustaining adverse credibility determination

where inconsistencies between testimony and documentary evidence concerned

dates of the alleged incident of persecution). The IJ reasonably rejected Reyes’

explanations for the inconsistencies. See Rivera v. Mukasey, 508 F.3d 1271, 1275

(9th Cir. 2007). In the absence of credible testimony, petitioners’ withholding of

removal claim fails. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

2 07-72561
 Because petitioners’ CAT claim is based on the same testimony found to be

not credible, and they point to no other evidence the agency should have

considered, substantial evidence also supports the denial of CAT relief. See id. at

1156-57.

PETITION FOR REVIEW DENIED.

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