                                                                              FILED
                            NOT FOR PUBLICATION                                JAN 22 2015

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



                            FOR THE NINTH CIRCUIT


CARLOS DANIEL GARCIA-ALVAREZ,                    No. 12-71355

              Petitioner,                        Agency No. A099-664-458

  v.

ERIC HOLDER, JR.                                 MEMORANDUM*

              Respondent.


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

                            Submitted October 8, 2014**
                                Portland, Oregon

Before: KOZINSKI, FISHER and DAVIS,*** Circuit Judges.




        *
             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).
        ***
             The Honorable Andre M. Davis, Senior Circuit Judge for the United
States Court of Appeals for the Fourth Circuit, sitting by designation.
      Petitioner Carlos Daniel Garcia-Alvarez, a native and citizen of El Salvador

who now resides in Washington State, petitions for review of the decision issued

by the Board of Immigration Appeals (“BIA”), in which it affirmed the

Immigration Judge’s (“IJ”) denial of his claims for asylum, withholding of

removal, and relief under the Convention Against Torture (“CAT”). For the

reasons stated below, we deny the petition.

      1. Because the BIA reviewed and adopted the IJ’s adverse credibility

determination, we review for substantial evidence both the BIA’s and IJ’s adverse

credibility findings. See Cui v. Holder, 712 F.3d 1332, 1336 (9th Cir. 2013). Under

the substantial evidence standard, we may reverse the credibility determination

only if the evidence presented by Garcia-Alvarez was “‘so compelling that no

reasonable factfinder could find that [he] was not credible.’” Malkandi v. Holder,

576 F.3d 906, 917 (9th Cir. 2008) (quoting Farah v. Ashcroft, 348 F.3d 1153, 1156

(9th Cir. 2003)).

      2. Even assuming Garcia-Alvarez established an extraordinary circumstance

justifying his untimely application for asylum, and that he filed his application




                                          2
within a reasonable time period thereafter,1 substantial evidence supported the IJ’s

determination, affirmed by the BIA, that Garcia-Alvarez failed to provide credible

testimony. Garcia-Alvarez could not identify the year in which he joined the

Farabundo Marti National Liberation Front (“FMLN”), and named only one march

in which he participated. Additionally, despite his testimony that he kept apprised

of political developments in El Salvador, he did not know the number of seats

FMLN holds in the governing assembly, did not know whether an FMLN leader

had caused dissension within the party, and could not name any parties that have

defected from FMLN. Finally, his testimony that he was afraid to return to El

Salvador diverged from the explanation he gave to a border patrol agent upon his

entry into the United States that he was seeking employment in California. Cf. Liu

v. Holder, 640 F.3d 918, 925–26 (9th Cir. 2011) (concluding that the petitioner’s

failure to mention Falun Gong, “the central element of her asylum claim,” at her

airport interview “undermine[d] her credibility to some degree”).

      1
        Garcia-Alvarez claims the extraordinary circumstance that prevented him
from timely filing his application for asylum was the scheduling of his initial
master calendar hearing outside of one year of his entry into the United States. The
government does not oppose Garcia-Alvarez’s challenge to the BIA’s
determination that he failed to satisfy the extraordinary circumstances exception to
the one-year filing deadline. We need not decide whether the timing of the hearing
was an extraordinary circumstance, or whether he filed within a reasonable time
period thereafter, because we find that Garcia-Alvarez’s petition fails on the
merits.

                                          3
      3. Even assuming Garcia-Alvarez testified credibly, the BIA’s determination

that he failed to establish his eligibility for asylum or withholding of removal is

supported by substantial evidence. Garcia-Alvarez does not qualify for asylum, as

he cannot establish either past persecution based on a protected ground or a well-

founded fear of future persecution. See 8 U.S.C. § 1158(b)(1)(A); 8 U.S.C. §

1101(a)(42)(A). He had only a single encounter with the police about four years

before he left El Salvador, and there is no evidence the Salvadorian government

has, or ever had, an ongoing interest in him.

      It follows that, because Garcia-Alvarez does not qualify for asylum, he does

not satisfy the more stringent standard for withholding of removal. See Zehatye v.

Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

      Finally, the BIA’s determination that Garcia-Alvarez is not eligible for relief

under the CAT is supported by substantial evidence. Garcia-Alvarez cannot

establish that it is “more likely than not” that he would be tortured if removed to El

Salvador. 8 C.F.R. § 1208.16(c)(2); see also 8 C.F.R. § 1208.18(a)(1). To support

his application under the CAT, he points to the United States government’s recent

extension of the designation of El Salvador for temporary protected status. See 77

Fed. Reg. 1710-02 (Jan. 11, 2012). But the extension related to damage caused by

a series of earthquakes and has no bearing on his eligibility for CAT relief.


                                          4
PETITION FOR REVIEW DENIED.




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