Erwin Alvarado-Mayen v. Loretta E. Lynch , 637 F. App'x 408 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 24 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERWIN AROLDO ALVARADO- No. 13-70174
MAYEN,
Agency No. A072-401-052
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2016**
San Francisco, California
Before: NOONAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Erwin Alvarado-Mayen petitions for review of an order of the Board of
Immigration Appeals (BIA) denying his appeal of the Immigration Judge’s denial
*
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).
of his various claims for immigration relief. We have jurisdiction under 8 U.S.C.
§ 1252, and we deny the petition for review.
1. Alvarado-Mayen’s claims for asylum, withholding of removal, and
special rule cancellation under the Nicaraguan Adjustment and Central American
Relief Act (NACARA) are subject to the persecutor bar. 8 U.S.C.
§ 1158(b)(2)(A)(i) (asylum); id. § 1231(b)(3)(B)(i) (withholding of removal); 8
C.F.R. § 1240.66(a) (NACARA special rule cancellation). Alvarado-Mayen told
the asylum officer that he looked for suspected guerillas in Guatemala, that two
guerillas were arrested as a result of his investigations, that suspected guerillas
were tortured, and that he participated in combat about six times. Alvarado-Mayen
concedes that these statements raised the inference that he participated in
persecution, shifting the burden to him to prove that he was not a persecutor. See 8
C.F.R. § 1240.8(d); Miranda Alvarado v. Gonzales, 449 F.3d 915, 930 (9th Cir.
2006) (holding that evidence that a translator assisted in interrogations of suspected
guerillas raised the inference that he participated in persecution, shifting the burden
to the translator to prove he did not).
The BIA found Alvarado-Mayen’s testimony regarding his military service
not to be credible, due to multiple inconsistencies. The BIA’s adverse credibility
determination was supported by substantial evidence. Because this is a pre-REAL
2
ID Act case, Alvarado-Mayen’s inconsistencies must “go to the heart” of his
claims for relief. Li v. Holder, 629 F.3d 1154, 1158 (9th Cir. 2011). Here,
between his asylum interview, his declarations, and his in-court testimony,
Alvarado-Mayen gave multiple inconsistent statements, such as denying that he
looked for suspected guerillas, denying that he saw suspected guerillas in prisons
or jails, and denying that he engaged in combat. These inconsistencies went to the
heart of Alvarado-Mayen’s claim that he did not participate in persecution. See
Chebchoub v. I.N.S., 257 F.3d 1038, 1043 (9th Cir. 2001) (holding that a
petitioner’s inconsistencies regarding his departure from Morocco went to the heart
his petition for asylum, because they “relate[d] to the basis for his alleged fear of
persecution” (citation omitted)). Because Alvarado-Mayen cannot point to
credible evidence that he did not participate in persecution, his claims for asylum,
withholding of removal, and NACARA special rule cancellation must be denied.
2. Substantial evidence supports the BIA’s determination that Alvarado-
Mayen has not established an entitlement to relief under the Convention Against
Torture (CAT). To be entitled to CAT relief, Alvarado-Mayen must show
that it is more likely than not he will be tortured in Guatemala. 8 C.F.R.
§ 1208.16(c)(2). Alvarado-Mayen’s country reports, which show that the
Guatemalan police abuse criminal suspects, do not demonstrate a likelihood that he
3
will be tortured, because he does not claim to be a criminal suspect. See Delgado-
Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (holding “generalized
evidence of violence” in Mexico did not establish eligibility for CAT relief where
the petitioners did not show a particular likelihood that they would be harmed).
The single incident where Alvarado-Mayen was shot by guerillas also does not
demonstrate that the Guatemalan government would consent to or acquiesce in
Alvarado-Mayen’s future torture, because that incident happened nearly thirty
years ago, and there is no evidence that the Guatemalan government is allowing
former members of the military to be targeted for abuse or that Alvarado-Mayen
would specifically be targeted. See Lopez-Cardona v. Holder, 662 F.3d 1110,
1114 (9th Cir. 2011).
PETITION DENIED.
4