                                                                              FILED
                            NOT FOR PUBLICATION                               NOV 16 2010

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



                            FOR THE NINTH CIRCUIT


MARTHA ISABEL SIERRA-                            No. 05-74740
CARDONA,
                                                 Agency No. A079-800-107
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



MARTHA ISABEL SIERRA-                            No. 06-71823
CARDONA,
                                                 Agency No. A079-800-107
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                             Submitted June 14, 2010**
                              San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and PANNER, District
Judge.***

      Martha Isabel Sierra-Cardona is a native and citizen of Colombia who

petitions for review of decisions of the Board of Immigration Appeals (“BIA”)

affirming the Immigration Judge’s (“IJ”) denial of asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”). She also

petitions for review of the BIA’s denial of her motion to reopen.

      To be eligible for asylum, Sierra-Cardona has the burden of proving she

suffered past persecution or has a well-founded fear of future persecution. Lolong

v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc). To qualify for

withholding of removal, she is required to establish that it is more likely than not

that she would be subjected to persecution if returned to Colombia. Kohli v.

Gonzales, 473 F.3d 1061, 1070 (9th Cir. 2007). In order to obtain CAT relief,

Sierra-Cardona must establish that it would be more likely than not that she would




        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
              The Honorable Owen M. Panner, Senior United States District Judge
for the District of Oregon, sitting by designation.

                                          2
be tortured upon her return to Colombia. Muradin v. Gonzales, 494 F.3d 1208,

1210–11 (9th Cir. 2007).

       Sierra-Cardona claims she met these standards because she was persecuted

and tortured in Colombia on account of her homosexuality. The IJ determined that

she was not credible. Although Sierra-Cardona testified that she was raped by

military men because she was a lesbian, she neglected to mention this incident in

her initial interview with an asylum officer and in her application. She only raised

this claim a day before her hearing. It is not clear from the record that her lawyer

was responsible for omitting this rape incident. While it is true that in some

circumstances failure to disclose an instance of rape prior to an asylum hearing

cannot alone support an adverse credibility finding, Kebede v. Ashcroft, 366 F.3d

808, 811 (9th Cir. 2004), the BIA found the record as a whole undermines Sierra-

Cardona’s credibility. The BIA noted the IJ identified and properly evaluated a

number of inconsistencies and omissions in the record. The evidence does not

compel a contrary conclusion. See Zhou v. Gonzales, 437 F.3d 860, 865 (9th Cir.

2006) (“To reverse, the evidence ‘must have been such that a reasonable fact-

finder would have been compelled to conclude that [the petitioner] was eligible for

relief.’”) (citation omitted).




                                          3
      Since Sierra-Cardona failed to establish her eligibility for asylum, she also

failed to meet the higher burden of proving her entitlement to withholding of

removal. Kumar v. Gonzales, 439 F.3d 520, 525 (9th Cir. 2006). Sierra-Cardona

also cannot establish her eligibility for CAT relief because her stated fear of future

torture is based on the same evidence which the IJ and BIA determined was not

credible. See Farah v. Ashcroft, 348 F.3d 1153, 1157 (9th Cir. 2003).

      Sierra-Cardona moved to reopen based on ineffective assistance of counsel.

She claimed that she was not being properly represented because there was

confusion as to which of the two attorneys was actually representing her. Although

the record indicates some early confusion on this issue, close to a year before the

merits hearing she consented to one of the attorneys representing her. Sierra-

Cardona further contends that her attorney was ineffective for failing to include her

rape claim in her application and failing to timely submit documents to the IJ

regarding said claim. The record does not reflect that any omission was

attributable to counsel. The BIA did not abuse its discretion in denying her motion

to reopen. See Perez v. Mukasey, 516 F.3d 770, 773 (9th Cir. 2008) (noting

standard of review).

      The petition for review is DENIED.




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