                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 15 2012

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




                            FOR THE NINTH CIRCUIT



JOSE VICTORIANO JANDRES-                         No. 09-73074
TURCIOS,
                                                 Agency No. A070-345-989
              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 November 6, 2012
                              Pasadena, California

Before:       KOZINSKI, Chief Judge, REINHARDT and THOMAS, Circuit
              Judges.


       1. Although Jandres testified that he did nothing to persecute anyone, the

immigration judge (IJ) found Jandres’s testimony about his activities as a Treasury

policeman to be “incredible and inconsistent.” Credibility determinations are



          *
          This disposition isn’t appropriate for publication and isn’t precedent
except as provided by 9th Cir. R. 36-3.
                                                                                  page 2

“conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B); Shrestha v. Holder, 590 F.3d 1034, 1044

(9th Cir. 2010). Jandres first testified that he never detained anyone, but then said

he had. In addition, he claimed that he didn’t remember telling an immigration

officer that he had (1) killed guerillas, (2) interrogated civilians suspected of aiding

guerillas, (3) personally interrogated three indigenous persons for subversion, and

(4) delivered suspected guerillas to the S-2.

      Given these inconsistencies, the IJ was justified in discounting Jandres’s

testimony. In addition, Jandres admitted to being a member of the Treasury Police

in El Salvador, known for its human rights abuses, and to turning people over to

the S-2 intelligence unit, where he knew they may have been harmed.

Collectively, this was “sufficient” to shift the burden to Jandres to prove he wasn’t

a persecutor. In re A-H-, 23 I. & N. Dec. 774, 786 (A.G. 2005) (internal quotation

marks omitted); see also Miranda Alvarado v. Gonzales, 449 F.3d 915, 930 (9th

Cir. 2006); 8 C.F.R. § 1240.8(d).

      Because Jandres didn’t offer any evidence beyond his own non-credible

testimony, he didn’t meet his burden of persuasion that he wasn’t a persecutor

under either the Immigration and Nationality Act, 8 U.S.C. §§ 1229b(c)(5),
                                                                                page 3

1231(b)(3)(B)(i), or the Nicaraguan Adjustment and Central American Relief Act,

Pub L. No. 105-100, Title II, § 203(f)(1)(A), 111 Stat. 2198 (1997).


      2. Federal regulations require that “any grant of voluntary departure shall

terminate automatically upon the filing of the petition or other judicial challenge

and the alternate order of removal . . . shall immediately take effect.” 8 C.F.R.

§ 1240.26(i); see Garfias-Rodriguez v. Holder, No. 09-72603, 2012 WL 5077137,

at *16–20 (9th Cir. Oct. 19, 2012) (en banc). The stay granted by this court on

December 21, 2009, is lifted; however, if he complies with the requirements of 8

C.F.R. § 1240.26(i), by departing within thirty days, Jandres shall not be deemed to

have departed under the order of removal.


      PETITION DENIED.
