                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 17 2010

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




                            FOR THE NINTH CIRCUIT

LAZARO NAZARIO VAIL-DIAZ,                        No. 08-74634

              Petitioner,                        Agency No. A096-385-916

  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 5, 2010
                            San Francisco, California

Before: HALL and THOMAS, Circuit Judges, and RESTANI, Judge.**

       Lazaro Nazario Vail-Diaz, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals (“BIA”) decision affirming the

immigration judge’s denial of his applications for asylum, withholding of removal,

and protection under the Convention Against Torture. We deny the petition.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
       The BIA properly rejected Vail-Diaz’s asylum claim as time-barred. Vail-

Diaz did not file an application for asylum within the statutorily mandated period

of one year. 8 U.S.C. § 1158(a)(2)(B). Substantial evidence supports the BIA’s

conclusion that Vail-Diaz had not proven the extraordinary circumstances

necessary to justify the late filing.

       Substantial evidence also supports the BIA’s adverse credibility

determination. Vail-Diaz’s testimony was inconsistent on numerous occasions,

and those inconsistencies went to the heart of his claim. In addition, when read as

a whole, the record demonstrates frequent changes in Vail-Diaz’s story when asked

for clarification about the details, which supports the BIA’s determination that he

was not credible. Therefore, the BIA did not err in rejecting his application for

withholding of removal.

       Substantial evidence also supports the BIA’s conclusion that Vial-Diaz did

not establish it was more likely than not that he would be tortured upon his return

to Guatemala, and thus ineligible for relief under the Convention Against Torture.

8 C.F.R. § 1208.16(c)(2). Vial-Diaz has returned to Guatemala numerous times

since he left, and his wife and children continue to live there unharmed.

       PETITION DENIED.




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