                                                                           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                            NOT FOR PUBLICATION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


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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


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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.




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