Ricardo Valdivias-Herrera v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 08 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICARDO VALDIVIAS-HERRERA, No. 12-71132
a.k.a. Ricardo Herrera, a.k.a. Ricardo
Valdivia-Herrera, a.k.a. Ricardo Vildvios- Agency No. A079-625-493
Herrera,
Petitioner, MEMORANDUM*
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 19, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Ricardo Valdivias-Herrera, a native and citizen of Mexico, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) order of removal. We review for substantial
*
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).
evidence the agency’s factual findings and apply the standards governing adverse
credibility determinations created by the Real ID Act. Shrestha v. Holder, 590 F.3d
1034, 1039-40 (9th Cir. 2010). We have jurisdiction under 8 U.S.C. § 1252, and we
deny the petition for review.1
Because Valdivias-Herrera has not challenged the IJ’s determination that he
has been convicted of an aggravated felony that was a particularly serious crime, he
is not eligible for asylum or withholding of removal, and his only potential avenue
for relief is deferral of removal under the Convention Against Torture. See 8 U.S.C.
§§ 1158(b)(2)(A)(ii), 1231(b)(3)(B)(ii); 8 C.F.R. § 1208.16(c) & (d); Arbid v.
Holder, 700 F.3d 379, 385 (9th Cir. 2012); Lemus-Galvan v. Mukasey, 518 F.3d
1081, 1083 (9th Cir. 2008).
Valdivias-Herrera contends that the agency’s adverse credibility finding was
not supported by the evidence. We reject this contention. The agency’s adverse
credibility determination is supported by substantial evidence based on the totality
of the circumstances, including the glaring inconsistencies between the statements
in Valdivias-Herrera’s asylum application and the statements in his testimony
concerning the reasons he feared being tortured and killed. See Shrestha, 590 F.3d
1Because the parties are familiar with the facts and procedural history
underlying this appeal, we do not recount them here.
2 12-71132
at 1040-44, 1046-47; see also Zamanov v. Holder, 649 F.3d 969, 973 (9th Cir.
2011) (recognizing that alterations in basis of claim for persecution between an
asylum application and subsequent testimony support an adverse credibility
determination).
The BIA applied the correct standard when it ruled on Valdivias-Herrera’s
request for deferral of removal under CAT. Because his testimony was not credible
and there is no other evidence showing it is more likely than not he will be tortured
if returned to Mexico, his CAT claim fails. See 8 U.S.C. § 1229a(c)(4)(B);
Shrestha, 590 F.3d at 1048-49; Farah v. Ashcroft, 348 F.3d 1153, 1156-57 (9th Cir.
2003).
Valdivias-Herrera’s remaining contentions are unavailing.
PETITION FOR REVIEW DENIED.
3 12-71132