FILED
NOT FOR PUBLICATION JUL 24 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LESTER FRANCISCO ESPINOZA, No. 12-72153
Petitioner, B.I.A. No. A088-448-913
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted July 9, 2015
San Francisco, California
Before: GILMAN,** GRABER, and WATFORD, Circuit Judges.
Lester Espinoza, a native of Nicaragua, left his country in 1995 when he was
approximately 16 years old. His family—and his father in particular—were
supporters of the Liberal Party, which was in power in Nicaragua until 1979, the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Ronald Lee Gilman, Senior United States Circuit Judge
for the Court of Appeals for the Sixth Circuit, sitting by designation.
year when Espinoza was born. In 1979, however, the government was overthrown
by the Sandinista National Liberation Front (the Sandinistas).
Espinoza claims that, since 1979, his family has faced persecution by the
Sandinista government because of his family’s political affiliation. The
immigration judge (IJ) denied Espinoza’s applications for relief from removal in
December 2010, finding that his asylum claim was time-barred and that he had
failed to make the requisite showings on his other claims. The Board of
Immigration Appeals (BIA) dismissed Espinoza’s appeal in June 2012, assuming
without deciding that his asylum claim was timely but rejecting it (and the other
claims) on the merits.
Where “the BIA conducts a de novo review of an IJ’s decision, rather than
adopting the IJ’s decision as its own, the Ninth Circuit reviews the BIA’s
decision.” Ochoa v. Gonzales, 406 F.3d 1166, 1169 (9th Cir. 2005). We must
treat the agency’s findings of fact as conclusive “unless any reasonable adjudicator
would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see
also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). To determine whether a
reasonable person would have been compelled to reach a conclusion contrary to
that reached by the BIA, we review the record to determine whether it contains
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“reasonable, substantial, and probative” evidence to support the facts found. Elias-
Zacarias, 502 U.S. at 481 (internal quotation marks omitted).
Espinoza’s first contention on review is that the BIA exceeded its regulatory
authority by finding new facts in order to resolve his asylum claim on the merits.
He is mistaken. Every fact that the BIA used to resolve his asylum claim was
found by the IJ in the course of deciding Espinoza’s other claims.
Turning now to the substance of the BIA’s decision, we find no error in the
denial of Espinoza’s claims. We have held that, on very similar facts, a reasonable
factfinder would not be compelled to conclude that the applicant had established
the well-founded fear of past or future persecution required to qualify for asylum.
See Gutierrez-Centeno v. INS, 99 F.3d 1529, 1531 (9th Cir. 1996) (upholding the
BIA’s determination that a Nicaraguan seeking asylum had not established past
persecution by the Sandinistas where her family prominently supported an
opposing political party and several of them had been imprisoned, killed, or had
their property confiscated). Here, as there, “[a]lthough we do not find [the
petitioner’s] claim to be without substantial support, we cannot conclude that the
evidence presented was so compelling” as to require reversal. Id.
Because Espinoza has not met the requisite standard to qualify for asylum,
we cannot set aside the BIA’s conclusion that he has failed to meet the “more
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stringent,” “clear probability of future persecution” test for withholding of
removal. See Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir. 2010). Nor do we
see any reason to dispute both the IJ’s and the BIA’s conclusion that Espinoza has
failed to show that it is “more likely than not that he . . . would be tortured if
removed to the proposed country of removal,” 8 C.F.R. § 1208.16(c)(2), because,
in the agency’s words, “his family has apparently avoided any such harm, [so]
there is no basis to conclude that [he] is more likely than they are to be tortured.”
Petition DENIED.
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