                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 30 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



CARLOS ENRIÏUE COLOMA                            No. 05-75880
JOHNSON,
                                                 Agency No. A095-600-271
             Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER Jr., Attorney General,

             Respondent.


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

                       Argued and Submitted March 11, 2010
                            San Francisco, California

Before: FERNANDEZ, THOMAS and CALLAHAN, Circuit Judges.

       Carlos Enrique Coloma Johnson ('Coloma'), a native and citizen of Peru,

petitions for review of the Board of Immigration Appeals' ('BIA') denial of his

applications for asylum, withholding of removal, and relief under the Convention




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
against Torture ('CAT'). We have jurisdiction pursuant to 8 U.S.C. y 1252, and

we deny the petition.1

      Where, as here, the BIA adopts the immigration judge's ('IJ') decision

without comment, we review the IJ's decision. Don v. Gonzales, 476 F.3d 738,

741 (9th Cir. 2006). We review the IJ's adverse credibility determination for

substantial evidence. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995). Under

this standard, 'administrative findings of fact are conclusive unless any reasonable

adjudicator would be compelled to conclude to the contrary.' 8 U.S.C. y

1252(b)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

      Coloma, a retired Peruvian policeman, alleges that a secret paramilitary

organization run by Fujimori's Chief of Intelligence (Grupo Colina) persecuted

him for more than nine years by maµing daily anonymous, threatening telephone

calls to his house, arranging for his dangerous job assignments, and maµing two or

three 'attempts' on his life. He alleges that Grupo Colina targeted him because he

refused to join it and tried to investigate their wrongdoing.

      The IJ found that Coloma's 'overall version of events' was not credible, and

pointed to several inconsistencies and implausibilities in his sworn statements. For



      1
       Because the parties are familiar with the facts, we repeat them here only as
necessary to the disposition of this case.

                                           2
example, the IJ noted that Coloma claimed that he could not safely return to Peru,

but had done so twice while Fujimori was still in power, each time coming bacµ

from the United States without seeµing asylum because he was 'not interested' in

it. Coloma also claimed that Grupo Colina punished him by arranging his transfer

into dangerous drug trafficµing regions, but also claimed that his transfers out of

those regions and into 'desµ jobs' were punishment. Further, although Coloma

claimed that Grupo Colina tried to stop his investigations into its activities by

moving him to dangerous field assignments, the record shows he was transferred

bacµ into an investigative unit as late as 1997.

      Furthermore, the IJ found that, assuming the threatening telephone calls

occurred, they appeared to be more consistent with threats by narco-trafficµers that

Coloma had arrested and testified against than with threats by Grupo Colina. This

conclusion was reasonable since, according to Coloma, the callers said that he had

'done [them] a lot of damage,' and Coloma presented no evidence that his refusal

to join Grupo Colina adversely affected it. Moreover, his alleged attempts to

expose its wrongdoing were admittedly unsuccessful. On this record, we are not

compelled to reach a conclusion contrary to the IJ's, and we must uphold the IJ's




                                           3
adverse credibility finding.2 Because Coloma's testimony regarding his alleged

past persecution is not credible, we conclude that Coloma's asylum application was

properly denied. See Li v. Ashcroft, 378 F.3d 959, 960 (9th Cir. 2004).

       Moreover, we conclude that, even assuming the alleged harassment

occurred, there is no evidence to compel the conclusion that it was 'on account of'

Coloma's political opinion or membership in a social group. Coloma gave

differing reasons (including non-political ones) for why he refused to join the

group, and there was no evidence showing that Grupo Colina imputed a political

opinion to him, or that it was responsible for the alleged persecution. See Navas v.

INS, 217 F.3d 646, 655-57 (9th Cir. 2000). For these same reasons, we conclude

that the alleged persecution was also not 'on account of' his membership in a

purported social group, i.e., 'policemen who refused to join Grupo Colina and

investigated corruption.' Neither does the record compel the conclusion that he

was harassed because he was a 'former policemen in the Peruvian National Police

Force.' Cf. Montecino v. INS, 915 F.2d 518, 520 (9th Cir. 1990) (recognizing



      2
         The IJ did not err by declining to maµe specific credibility determinations
regarding the testimony of Coloma's wife and daughter. Each of them provided
testimony similar to Coloma's, none of which compels reversal of the IJ's findings.
Coloma's other allegedly corroborating evidence (e.g., a psychologist's diagnosis
and his career record) is also insufficient to compel reversal because it does not
resolve the inconsistencies discussed above.

                                          4
persecution where ex-soldiers were targeted by the opposition for their past

affiliation with the military). Indeed, here, Coloma alleged that it was Grupo

Colina that forced him into early retirement.3

       Coloma's failure to establish a credible claim of past persecution dooms his

claim of a well-founded fear of future persecution. See Valderrama v. INS, 260

F.3d 1083, 1085 (9th Cir. 2001) (citing Pal v. INS, 204 F.3d 935, 939 (9th Cir.

2000)). Indeed, Coloma twice returned safely to Peru without seeµing asylum.

      Because Coloma has failed to establish his eligibility for asylum, he cannot

meet the higher burden for withholding of removal. Zehatye v. Gonzales, 453 F.3d

1182, 1190 (9th Cir. 2006). Finally, nothing in the record compels the conclusion

that Coloma 'is more liµely than not to suffer intentionally-inflicted cruel and

unusual treatment' if removed to Peru. See Nuru v. Gonzales, 404 F.3d 1207,

1221 (9th Cir. 2005).

      DENIED.


      3
        We also reject Coloma's alternative argument that he is eligible for asylum
even if his persecutors were narco-trafficµers that the government was unable to
control. The IJ did not err in observing that Coloma never asµed the government
to protect him from narco-trafficµers. See Baballah v. Ashcroft, 367 F.3d 1067,
1078 (9th Cir. 2004). Further, Coloma's assertion that his status as a government
employee, by itself, establishes an 'imputed political opinion' is unavailing, as he
does not explain what opinion the narco-trafficµers may have been imputed to him,
or the nexus between his job and the purported opinion. Cf. Sagayadaµ v.
Gonzales, 405 F.3d 1035, 1042-43 (9th Cir. 2005).

                                          5
                                                                            FILED
Coloma Johnson v. Holder, No. 05-75880                                       MAR 30 2010

                                                                         MOLLY C. DWYER, CLERK
THOMAS, Circuit Judge, concurring:                                        U.S . CO UR T OF AP PE A LS




      The immigration judge's adverse credibility determination was founded on

impermissible speculation, and the IJ failed to address the petitioner's explanation

for the purported inconsistencies. Thus, I cannot agree that substantial evidence

supports the adverse credibility determination. See Kaur v. Ashcroft, 379 F.3d 876,

887 (9th Cir. 2004) ('An adverse credibility finding is improper when the IJ fails

to address a petitioner's explanation for a discrepancy or inconsistency.'); see also

Guo v. Ashcroft, 361 F.3d 1194, 1201-02 (9th Cir. 2004) (IJ speculated

impermissibly as to why applicant did not apply for asylum immediately upon

entry).

      However, substantial evidence does support the IJ's alternative holding

denying relief on the merits. Therefore, I concur in the denial of the petition for

review.
