                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 03 2014

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



                             FOR THE NINTH CIRCUIT


NELLY VIVANCO and WILMER                         No. 09-71864
CORONEL,
                                                 Agency Nos. A098-829-323
              Petitioners,                                   A098-829-324

  v.
                                                 MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                             Submitted January 15, 2014**
                               San Francisco, California

Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

       Nelly Vivanco and Wilmer Coronel, wife and husband and natives and

citizens of Peru, petition for review from 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.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

                                          1
(“BIA”) order dismissing their appeal from an Immigration Judge’s (IJ”) decision

denying their applications for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”).1 We have jurisdiction under 8 U.S.C.

§ 1252. We deny the petition for review.

                                           I

      We review the BIA’s findings for substantial evidence, applying the

standards created by the REAL ID Act, because petitioners filed their applications

after May 11, 2005. Shrestha v. Holder, 590 F.3d 1034, 1039–40 (9th Cir. 2010).

“[A]dministrative findings of fact are conclusive unless any reasonable adjudicator

would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).

                                           II

      In general, an applicant for asylum may be eligible for such relief based on

past persecution or on “a well-founded fear of future persecution,” which “must be

both subjectively genuine and objectively reasonable.” Halim v. Holder, 590 F.3d

971, 976 (9th Cir. 2009) (internal citations and quotation marks omitted).

Similarly, an applicant for withholding of removal may be eligible for such relief

based on past persecution or “‘objective evidence that it is more likely than not that



      1
        Coronel’s application was derivative of lead petitioner Vivanco’s
application.

                                           2
[he or she] will be subject to persecution upon deportation.’” Viridiana v. Holder,

646 F.3d 1230, 1239 (9th Cir. 2011) (quoting I.N.S. v. Cardoza–Fonseca, 480 U.S.

421, 430 (1987)).

      Petitioners sought to demonstrate their eligibility for asylum, withholding of

removal, and protection under the CAT primarily through Ms. Vivanco’s

testimony. She testified that Oscar Ramirez-Durand, a leader of the Sendero

Luminoso or Shining Path, killed her brother, Javier Carlos Vivanco-Andia. She

also asserted that, by publicly seeking the Peruvian authorities’ help to find

Vivanco-Andia’s body and his killer, she “participated” in Ramirez-Durand’s

capture. Additionally, she testified that, for that reason, the Sendero Luminoso has

targeted her and her family for retribution because they blame her for Ramirez-

Durand’s capture. She stated that she feared persecution or assassination by the

Sendero Luminoso if she was removed to Peru.

      The IJ determined that Ms. Vivanco’s testimony that Ramirez-Durand killed

her brother and that she participated in Ramirez-Durand’s capture was not

supported by objective evidence and was internally inconsistent and implausible.

The IJ found that, while a Peruvian government report on Vivanco-Andia’s death

identified several individuals as his “presumed” murderers, it named Ramirez-

Durand only as a commander of the Sendero Luminoso and not as Vivanco-

                                           3
Andia’s killer. (Certified Administrative Record (“AR”) 380.) The report states

that Abraham Acevedo-Espinoza, who was with Vivanco-Andia when he was

killed, informed Peruvian authorities that members of the Sendero Luminoso party

involved in Vivanco-Andia’s murder referred to each other as “Richard,” Negra,”

and “Freddy.” (AR 376–77.)      The IJ found that, in addition to the lack of “direct

corroborating evidence” for her testimony, there was no document that mentioned

Ms. Vivanco with respect to Ramirez-Durand or his capture. Additionally, the IJ

found that Ms. Vivanco’s claim that she feared persecution or assassination if

removed to Peru because she participated in the capture of Ramirez-Durand was

implausible in light of the fact that she remained in Peru approximately two (2)

years after her husband migrated to the United States.

      The IJ also found that Ms. Vivanco’s “demeanor” during her testimony

regarding her participation in Ramirez-Durand’s capture was “equivocal and

hesitant” and “shifted markedly . . . particularly when she was challenged about the

statements that she was making and the inconsistency of those statements with

corroborative documents or the lack of corroboration of that portion of her

testimony.”

      The BIA concluded that the record supported the IJ’s finding that

Ms. Vivanco’s testimony regarding her involvement in Ramirez-Durand’s capture

                                         4
was inconsistent with the evidence regarding his arrest. It stated that, while

Ms. Vivanco testified that her actions led to Ramirez-Durand’s capture, no

evidence in the record mentioned that she was involved in the Peruvian

government’s pursuit and capture of Ramirez-Durand. Noting that it “consider[ed]

the totality of the circumstances and all relevant factors,” including the IJ’s

observation of Ms. Vivanco’s demeanor, the BIA was “not persuaded to disturb the

Immigration Judge’s conclusion that [Ms. Vivanco] failed to testify credibly.”

      The inconsistencies between Ms. Vivanco’s testimony that Ramirez-Durand

killed her brother and that she was personally involved in Ramirez-Durand’s

capture and the documentation of Vivanco-Andia’s murder and Ramirez-Durand’s

capture support the BIA’s and the IJ’s findings that she was not a credible witness.

Additionally, Ms. Vivanco failed to present any evidence to corroborate her claims

that she participated in the capture of Ramirez-Durand. Petitioners have failed to

present evidence from which a reasonable adjudicator would be compelled to

conclude that they have an objective well-founded fear of future persecution.

8 U.S.C. § 1252(b)(4)(B); Halim, 590 F.3d at 976; Viridiana, 646 F.3d at 1239.

Accordingly, substantial evidence supports the BIA’s conclusion that petitioners

have failed to meet their burden to establish eligibility for asylum or withholding

of removal. 8 U.S.C. §§ 1158(b)(1)(A)-(B)(ii), 1231(b)(3)(A), (C).

                                           5
                                          III

      Petitioners also relied on the same testimony to demonstrate their eligibility

for protection under the CAT. They did not proffer credible evidence that it was

more likely than not that they would be subject to torture, by government consent

or acquiescence, if removed to Peru. Accordingly, petitioners have also failed to

meet their burden of proof to establish eligibility for protection under the CAT. 8

C.F.R. §§ 1208.18(a)(1) & (7), 1208.16(c)(1)-(2).

                                          IV

      Contrary to Ms. Vivanco’s contention, the BIA did not issue a “boilerplate”

decision in this case. The BIA’s decision demonstrates that it independently

reviewed the record, states with particularly the reasons for the denial of relief, and

provides a sufficient basis for meaningful appellate review. Castillo v. I.N.S., 951

F.2d 1117, 1121 (9th Cir. 1991).

      PETITION FOR REVIEW DENIED.




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