Sierra-Cardona v. Holder , 403 F. App'x 242 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTHA ISABEL SIERRA- No. 05-74740
CARDONA,
Agency No. A079-800-107
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
MARTHA ISABEL SIERRA- No. 06-71823
CARDONA,
Agency No. A079-800-107
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Submitted June 14, 2010**
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and PANNER, District
Judge.***
Martha Isabel Sierra-Cardona is a native and citizen of Colombia who
petitions for review of decisions of the Board of Immigration Appeals (“BIA”)
affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of
removal, and protection under the Convention Against Torture (“CAT”). She also
petitions for review of the BIA’s denial of her motion to reopen.
To be eligible for asylum, Sierra-Cardona has the burden of proving she
suffered past persecution or has a well-founded fear of future persecution. Lolong
v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). To qualify for
withholding of removal, she is required to establish that it is more likely than not
that she would be subjected to persecution if returned to Colombia. Kohli v.
Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007). In order to obtain CAT relief,
Sierra-Cardona must establish that it would be more likely than not that she would
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Owen M. Panner, Senior United States District Judge
for the District of Oregon, sitting by designation.
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be tortured upon her return to Colombia. Muradin v. Gonzales, 494 F.3d 1208,
1210–11 (9th Cir. 2007).
Sierra-Cardona claims she met these standards because she was persecuted
and tortured in Colombia on account of her homosexuality. The IJ determined that
she was not credible. Although Sierra-Cardona testified that she was raped by
military men because she was a lesbian, she neglected to mention this incident in
her initial interview with an asylum officer and in her application. She only raised
this claim a day before her hearing. It is not clear from the record that her lawyer
was responsible for omitting this rape incident. While it is true that in some
circumstances failure to disclose an instance of rape prior to an asylum hearing
cannot alone support an adverse credibility finding, Kebede v. Ashcroft, 366 F.3d
808, 811 (9th Cir. 2004), the BIA found the record as a whole undermines Sierra-
Cardona’s credibility. The BIA noted the IJ identified and properly evaluated a
number of inconsistencies and omissions in the record. The evidence does not
compel a contrary conclusion. See Zhou v. Gonzales, 437 F.3d 860, 865 (9th Cir.
2006) (“To reverse, the evidence ‘must have been such that a reasonable fact-
finder would have been compelled to conclude that [the petitioner] was eligible for
relief.’”) (citation omitted).
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Since Sierra-Cardona failed to establish her eligibility for asylum, she also
failed to meet the higher burden of proving her entitlement to withholding of
removal. Kumar v. Gonzales, 439 F.3d 520, 525 (9th Cir. 2006). Sierra-Cardona
also cannot establish her eligibility for CAT relief because her stated fear of future
torture is based on the same evidence which the IJ and BIA determined was not
credible. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).
Sierra-Cardona moved to reopen based on ineffective assistance of counsel.
She claimed that she was not being properly represented because there was
confusion as to which of the two attorneys was actually representing her. Although
the record indicates some early confusion on this issue, close to a year before the
merits hearing she consented to one of the attorneys representing her. Sierra-
Cardona further contends that her attorney was ineffective for failing to include her
rape claim in her application and failing to timely submit documents to the IJ
regarding said claim. The record does not reflect that any omission was
attributable to counsel. The BIA did not abuse its discretion in denying her motion
to reopen. See Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (noting
standard of review).
The petition for review is DENIED.
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