                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 24 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


MEDARDO RODRIGUEZ; ANA B.                        No. 10-70987
GOMEZ,
                                                 Agency Nos.        A029-241-388
              Petitioners,                                          A075-733-020

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                             Submitted January 13, 2014**
                               San Francisco, California

Before: WALLACE and BYBEE, Circuit Judges, and MAHAN, District Judge.***

       Petitioners Medardo Rodriguez and Ana B. Gomez are husband and wife.

Rodriguez, a native and citizen of El Salvador, petitions for review of the decision

of the Board of Immigration Appeals (“the Board”) adopting and affirming an


        *
             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).
immigration judge’s (“IJ”) denial of his claims for asylum, withholding of

removal, withholding of removal and protection under the Convention Against

Torture (“CAT”), and special rule cancellation of removal under Section 203 of the

Nicaraguan and Central American Relief Act (“NACARA”). See 8 U.S.C. §§ 1158,

1231(b)(3); 8 C.F.R. §§ 1208.16(c)(2), 1240.61(a), 1240.66(b). Gomez is a native

and citizen of Mexico, and the Board denied her applications for cancellation of

removal under 8 U.S.C. § 1229b, derivative asylum under 8 U.S.C. § 1158(b)(3),

and derivative special rule cancellation of removal under NACARA § 203 based

on the denial of her husband’s applications for relief. She appeals only the

derivative claims. We have jurisdiction under 8 U.S.C. § 1252. We deny the joint

petition.

      To the extent the Board expressly adopts the IJ’s findings and reasoning, we

review the decision of the IJ as if it were that of the Board. Al-Harbi v. INS, 242

F.3d 882, 887 (9th Cir. 2001). Since Rodriguez’s application was filed before May

11, 2005, it is not governed by the REAL ID Act. Zamanov v. Holder, 649 F.3d

969, 973 n.2 (9th Cir. 2011). We review factual determinations, including

credibility determinations, for substantial evidence and must affirm the denial of

relief unless the evidence compels the conclusion that the petitioner is eligible for

relief. Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001).


                                          2
      The IJ denied the application for asylum, withholding, and CAT relief

because he found that Rodriguez’s testimony was not credible. The IJ must support

his credibility determination with “specific, cogent reason[s]” that “go to the heart”

of any asylum claim. Li v. Ashcroft, 378 F.3d 959, 962 (9th Cir. 2004) (quotation

marks and citations omitted). Here, the IJ provided several specific instances of

inconsistencies in Rodriguez’s testimony that go to the heart of his claims of past

persecution and his fear of future persecution. Among other inconsistencies, the IJ

noted that Rodriguez could not remember how often guerrillas attacked his

parents’ home and whether he was present at the time, when he was transferred

among various military units, and how much time elapsed between when he

suffered a combat injury and his entry into the United States. The IJ also found that

Rodriguez provided vague accounts about what he did during his military service

and what occurred when he and others forced the evacuation of civilians onto

helicopters in the so-called “safe passage incident.” The IJ found further that Dr.

Amana Ayoub, who testified that Rodriguez was not faking his memory loss, did

not bolster his credibility because Rodriguez’s inconsistencies and vagueness

remained regardless of their cause. Accordingly, the IJ’s finding of adverse

credibility was supported by substantial evidence.




                                          3
      Rodriguez’s failure to establish eligibility for asylum forecloses eligibility

under the more demanding standard of eligibility for withholding of removal.

Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995). And, since Rodriguez’s CAT

claim is based on the same asylum evidence the agency found not credible, and

because he points to no other evidence showing it is more likely than not he will be

tortured if he returns to El Salvador, his CAT claim also fails. See Farah v.

Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).

      Under NACARA § 203, certain El Salvadorans, Guatemalans, and Eastern

Europeans may also apply for suspension of deportation or special rule

cancellation if they meet certain requirements. 8 C.F.R. § 1240.66. For the

exception to apply, the applicant must not be subject to mandatory denial of relief,

which bars, among others, those who “ordered, incited, assisted, or otherwise

participated in the persecution of an individual because of the individual’s race,

religion, nationality, membership in a particular social group, or political opinion.”

8 U.S.C. § 1231(b)(3)(B)(i). The applicant bears the burden of establishing that he

is eligible for such relief, and “[i]f the evidence indicates that one or more of the

grounds for mandatory denial of the application for relief may apply, the alien shall

have the burden of proving by a preponderance of the evidence that such grounds

do not apply.” 8 C.F.R. § 1240.8(d) (emphasis added).


                                           4
      The government presented sufficient evidence (including Rodriguez’s own

statements) to “indicate” that Rodriguez engaged in the forced relocation of

civilian supporters of guerrillas, which “may” have constituted assistance in

civilian persecution. Rodriguez also admitted to having served in three El

Salvadoran military units that, according to evidence submitted by the government,

were engaged in human rights abuses during the period in which Rodriguez was a

member. Rodriguez presented no evidence to dispute these indications, as he was

required to do under 8 C.F.R. § 1240.8(d). Accordingly, the IJ’s application of the

persecutor bar was supported by substantial evidence.

      PETITION DENIED.




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