                                                                             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                            NOT FOR PUBLICATION                               JUL 24 2015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




                                         2
“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


                                          3
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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