FILED
NOT FOR PUBLICATION OCT 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO JOSE COREA-SALAZAR, No. 10-73895
AKA Roberto Corea-Gomez, AKA
Roberto Gomez, AKA Roberto C. Gomez, Agency No. A070-451-837
AKA Roberto Jose Salazar Gomez,
Petitioner, MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 10, 2014**
San Francisco, California
Before: O’SCANNLAIN, THOMAS, and McKEOWN, Circuit Judges.
Roberto Corea-Salazar, a native and citizen of Nicaragua, petitions for
review of the Board of Immigration Appeals’s (“BIA”) decision dismissing his
appeal of an order by an immigration judge (“IJ”) denying his applications for
*
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).
asylum, withholding of removal, CAT protection, and voluntary departure. We
have jurisdiction pursuant to 8 U.S.C. § 1252.
Because the BIA conducted its own review of the evidence and the law, our
review is limited to the BIA’s decision, except to the extent that the IJ’s opinion
has been expressly adopted. Hosseini v. Gonzalez, 471 F.3d 953, 957 (9th Cir.
2006). “We review constitutional claims and questions of law de novo and review
factual findings under the deferential substantial evidence standard, treating them
as ‘conclusive unless any reasonable adjudicator would be compelled to conclude
to the contrary.’” Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011)
(quoting 8 U.S.C. § 1252(b)(4)(B)).
We deny the petition for review. Because the parties are familiar with the
factual and procedural history of this case, we need not recount it here.
I
To be eligible for asylum in the United States, an applicant must establish
that he or she has a “well-founded fear of persecution” in his or her home country
“on account of race, religion, nationality, membership in a particular social group,
or political opinion.” 8 U.S.C. § 1158(b)(1). Here, the BIA determined that
Corea-Salazar failed to establish a well-founded fear of persecution on account of
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either his religious beliefs or his political beliefs. These determinations are
supported by substantial evidence.
Corea-Salazar became a Mormon three years after left Nicaragua and has not
presented any evidence which suggests that he has ever been persecuted on account
of his religion. Although he asserted generally that the Nicaraguan government
was repressive of Mormon missionary work, he did not present any specific
evidence to support that assertion. Nor did he present specific evidence to counter
the IJ’s factual finding, later adopted by the BIA, that the Nicaraguan government
routinely grants visas to foreign missionaries, including Mormons. Accordingly,
the record contains substantial evidence to support the BIA’s determination that
Corea-Salazar did not establish an objectively well-founded fear of persecution on
the basis of his Mormon faith.
Unlike with his application for asylum based on his religious beliefs, Corea-
Salazar presented evidence showing that he suffered past persecution in Nicaragua
based on his actual or imputed political beliefs. Specifically, he presented
evidence that he had been arrested, interrogated, and forced to go into hiding by
members of the military due to his participation in pro-Sandinista demonstrations
during the final years of the Somoza regime. Although this evidence of past
persecution gave rise to a presumption of well-founded fear, the BIA held that the
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government ultimately succeeded in rebutting that presumption with evidence of
changed country conditions. Deloso v. Ashcroft, 393 F.3d 858, 863-64 (9th Cir.
2005). In particular, the BIA cited the IJ’s undisputed factual finding that the
Somoza regime was no longer in power and that the Sandinistas are currently the
governing party in Nicaragua. Corea-Salazar failed to present specific evidence
showing that his past persecution would compel a reasonable fact-finder to
conclude that he has a well-founded fear of political persecution by the
Sandinistas. See 8 C.F.R. § 1208.13(b)(1) (“If the applicant’s fear of future
persecution is unrelated to the past persecution, the applicant bears the burden of
establishing that the fear is well-founded.”). Therefore, he has not met his burden
to show that he is eligible for asylum.
Because Corea-Salazar failed to meet the lower burden of proof required to
show that he is eligible for asylum, he has not met the higher burden of proof
required to show that he is eligible for withholding of removal. Fisher v. INS, 79
F.3d 955, 960-61 (9th Cir.1996) (en banc) (holding that an applicant who has not
satisfied the standard of proof required to establish eligibility for asylum
necessarily fails to satisfy the more stringent standard required to establish
eligibility for withholding of removal).
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Nor has he met the burden required to be eligible for protection under CAT.
To establish eligibility for relief under this provision, an applicant must show that
“‘he is more likely than not to suffer intentionally-inflicted cruel and inhuman
treatment that either (1) is not lawfully sanctioned by that country or (2) is lawfully
sanctioned by that country, but defeats the object and purpose of CAT.’” Nuru v.
Gonzales, 404 F.3d 1207, 1221 (9th Cir. 2005) (quoting Wang v. Ashcroft, 320
F.3d, 134 (2d Cir. 2003)). We have held that “country conditions alone can play a
decisive role in granting relief under [CAT].” Kamalthas v. INS, 251 F.3d 1279,
1280, 1283 (9th Cir. 2001). Here, Corea-Salazar has not identified any specific
evidence which would compel the conclusion that, under current country
conditions, he would be subject to government-sanctioned torture if he returned to
Nicaragua.
II
The BIA’s decision to deny voluntary departure was discretionary. AR 3
(“[B]ased on our de novo review of issues of discretion, the Immigration Judge’s
findings of fact establish that the respondent does not warrant the favorable
exercise of discretion necessary for a grant of voluntary departure.”). We therefore
lack jurisdiction to review that decision. 8 U.S.C. § 1229c(f) (“No court shall have
jurisdiction over an appeal from denial of a request for an order of voluntary
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departure under subsection (b) of this section, nor shall any court order a stay of an
alien's removal pending consideration of any claim with respect to voluntary
departure.”); Esquivel-Garcia v. Holder, 593 F.3d 1025, 1030 (9th Cir. 2010).
DENIED IN PART and DISMISSED IN PART.
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