FILED
NOT FOR PUBLICATION JAN 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MEDARDO RODRIGUEZ; ANA B. No. 10-70987
GOMEZ,
Agency Nos. A029-241-388
Petitioners, A075-733-020
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 13, 2014**
San Francisco, California
Before: WALLACE and BYBEE, Circuit Judges, and MAHAN, District Judge.***
Petitioners Medardo Rodriguez and Ana B. Gomez are husband and wife.
Rodriguez, a native and citizen of El Salvador, petitions for review of the decision
of the Board of Immigration Appeals (“the Board”) adopting and affirming an
*
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).
immigration judge’s (“IJ”) denial of his claims for asylum, withholding of
removal, withholding of removal and protection under the Convention Against
Torture (“CAT”), and special rule cancellation of removal under Section 203 of the
Nicaraguan and Central American Relief Act (“NACARA”). See 8 U.S.C. §§ 1158,
1231(b)(3); 8 C.F.R. §§ 1208.16(c)(2), 1240.61(a), 1240.66(b). Gomez is a native
and citizen of Mexico, and the Board denied her applications for cancellation of
removal under 8 U.S.C. § 1229b, derivative asylum under 8 U.S.C. § 1158(b)(3),
and derivative special rule cancellation of removal under NACARA § 203 based
on the denial of her husband’s applications for relief. She appeals only the
derivative claims. We have jurisdiction under 8 U.S.C. § 1252. We deny the joint
petition.
To the extent the Board expressly adopts the IJ’s findings and reasoning, we
review the decision of the IJ as if it were that of the Board. Al-Harbi v. INS, 242
F.3d 882, 887 (9th Cir. 2001). Since Rodriguez’s application was filed before May
11, 2005, it is not governed by the REAL ID Act. Zamanov v. Holder, 649 F.3d
969, 973 n.2 (9th Cir. 2011). We review factual determinations, including
credibility determinations, for substantial evidence and must affirm the denial of
relief unless the evidence compels the conclusion that the petitioner is eligible for
relief. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001).
2
The IJ denied the application for asylum, withholding, and CAT relief
because he found that Rodriguez’s testimony was not credible. The IJ must support
his credibility determination with “specific, cogent reason[s]” that “go to the heart”
of any asylum claim. Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (quotation
marks and citations omitted). Here, the IJ provided several specific instances of
inconsistencies in Rodriguez’s testimony that go to the heart of his claims of past
persecution and his fear of future persecution. Among other inconsistencies, the IJ
noted that Rodriguez could not remember how often guerrillas attacked his
parents’ home and whether he was present at the time, when he was transferred
among various military units, and how much time elapsed between when he
suffered a combat injury and his entry into the United States. The IJ also found that
Rodriguez provided vague accounts about what he did during his military service
and what occurred when he and others forced the evacuation of civilians onto
helicopters in the so-called “safe passage incident.” The IJ found further that Dr.
Amana Ayoub, who testified that Rodriguez was not faking his memory loss, did
not bolster his credibility because Rodriguez’s inconsistencies and vagueness
remained regardless of their cause. Accordingly, the IJ’s finding of adverse
credibility was supported by substantial evidence.
3
Rodriguez’s failure to establish eligibility for asylum forecloses eligibility
under the more demanding standard of eligibility for withholding of removal.
Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). And, since Rodriguez’s CAT
claim is based on the same asylum evidence the agency found not credible, and
because he points to no other evidence showing it is more likely than not he will be
tortured if he returns to El Salvador, his CAT claim also fails. See Farah v.
Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).
Under NACARA § 203, certain El Salvadorans, Guatemalans, and Eastern
Europeans may also apply for suspension of deportation or special rule
cancellation if they meet certain requirements. 8 C.F.R. § 1240.66. For the
exception to apply, the applicant must not be subject to mandatory denial of relief,
which bars, among others, those who “ordered, incited, assisted, or otherwise
participated in the persecution of an individual because of the individual’s race,
religion, nationality, membership in a particular social group, or political opinion.”
8 U.S.C. § 1231(b)(3)(B)(i). The applicant bears the burden of establishing that he
is eligible for such relief, and “[i]f the evidence indicates that one or more of the
grounds for mandatory denial of the application for relief may apply, the alien shall
have the burden of proving by a preponderance of the evidence that such grounds
do not apply.” 8 C.F.R. § 1240.8(d) (emphasis added).
4
The government presented sufficient evidence (including Rodriguez’s own
statements) to “indicate” that Rodriguez engaged in the forced relocation of
civilian supporters of guerrillas, which “may” have constituted assistance in
civilian persecution. Rodriguez also admitted to having served in three El
Salvadoran military units that, according to evidence submitted by the government,
were engaged in human rights abuses during the period in which Rodriguez was a
member. Rodriguez presented no evidence to dispute these indications, as he was
required to do under 8 C.F.R. § 1240.8(d). Accordingly, the IJ’s application of the
persecutor bar was supported by substantial evidence.
PETITION DENIED.
5