                                                                          FILED
                             NOT FOR PUBLICATION                           DEC 30 2009

                                                                      MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



                                                   No. 08-70556
    ROBERTO ALFREDO SCHMIDT
    URRUTIA,                                       Agency No. A035-775-0654

               Petitioner,                         MEMORANDUM *

    v.

    ERIC H. HOLDER, JR., Attorney General,

               Respondent.



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

                      Argued and Submitted November 2, 2009
                               Pasadena, California

Before: SCHROEDER, SILER,** and IKUTA , Circuit Judges.




*
 This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.

**
  The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the
Sixth Circuit, sitting by designation.

                                         -1-
      Roberto Alfredo Schmidt Urrutia petitions for review of the Board of

Immigration Appeals’ (BIA) order dismissing his appeal from an immigration judge’s

(IJ) decision denying his application for asylum, withholding of removal, and relief

under the Convention Against Torture (CAT). We deny the petition.

      Where, as here, the BIA adopts the IJ’s decision and also adds its own reasons,

we review both decisions. See Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.

2005). The BIA’s findings are reviewed as the final agency action. Id. To the extent

that the BIA simply affirms the IJ, we also review the IJ’s decision as if it were the

final agency action. Id.

      “[W]e review de novo the BIA’s determination of questions of law, except to

the extent that deference is owed to its interpretation of the governing statutes and

regulations.” Castillo-Cruz v. Holder, 581 F.3d 1154, 1158-59 (9th Cir. 2009)

(citations and internal quotation marks omitted). Factual findings underlying the

BIA’s final order are reviewed for substantial evidence. Zehatye v. Gonzales, 453

F.3d 1182, 1184-85 (9th Cir. 2006). The BIA’s determinations regarding eligibility

for asylum, withholding of removal, or relief under the CAT must be upheld if they

are “supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation




                                         -2-
omitted). To reverse the BIA’s factual determination we must find that the evidence

not only supports that conclusion, but compels it. Id. at 481 n.1.

      Because Urrutia’s application for asylum was untimely, it is statutorily barred

unless he can demonstrate the existence of changed circumstances which materially

affect his eligibility for asylum.1 See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D).

Urrutia asserts that learning about an outstanding warrant for his arrest on charges of

aggravated fraud constitutes a changed circumstance that should excuse his untimely

filing of an application for asylum. We disagree. Assuming his credibility, Urrutia

fled El Salvador because of the threats against him. The knowledge of an arrest

warrant issued against him may have intensified Urrutia’s fears, but it does not

constitute a changed circumstance that materially affected his eligibility for asylum.

See 8 C.F.R. § 1208.4(a)(4). Thus, Urrutia’s petition for asylum is statutorily barred.

See 8 U.S.C. § 1158(a)(2)(B).

      Although certainly unpleasant, the threats and harm that Urrutia endured in El

Salvador did not rise to the level of persecution. See Korablina v. INS, 158 F.3d 1038,

1043 (9th Cir. 1998). Moreover, the record does not compel a finding that Urrutia is




1
 The BIA’s determination that Urrutia failed to show changed circumstances is a
mixed question of law and fact subject to our review under the Real ID Act, Pub L.
No. 109-13 § 106(a) (2005). See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.
2007).

                                          -3-
more likely than not to be persecuted or tortured if forced to return to El Salvador.

See Muradin v. Gonzales, 494 F.3d 1208, 1210-11 (9th Cir. 2007).

      PETITION DENIED.




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