                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 23 2014

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

MARCO ANTONIO MENDOZA,                           No. 10-71256

              Petitioner,                        Agency No. A094-393-559

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

              Respondent.



MARCO ANTONIO MENDOZA,                           No. 10-73076

              Petitioner,                        Agency No. A094-393-559

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                      Argued and Submitted January 14, 2014
                            San Francisco, California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: WALLACE and BYBEE, Circuit Judges, and RESTANI, Judge.**

      In these consolidated petitions for review, Marco Antonio Mendoza, a native

and citizen of El Salvador, petitions for review of the Board of Immigration

Appeals’ (Board) order dismissing his appeal from an immigration judge’s

decision denying his application for asylum, withholding of removal, and relief

under the Convention Against Torture (CAT), as well as the Board’s order denying

his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. We review for

substantial evidence findings of fact, including adverse credibility determinations.

Chebchoub v. INS, 257 F.3d 1038, 1042 (9th Cir. 2001). We review for abuse of

discretion the denial of a motion to reopen. Iturribarria v. INS, 321 F.3d 889, 894

(9th Cir. 2003). We deny the petitions for review.

      Substantial evidence supports the agency’s adverse credibility determination

based on the inconsistency between Mendoza’s asylum application, testimony, and

interview with an asylum officer regarding whether he was ever subjected to harm

by the National Police. See Chebchoub, 257 F.3d at 1042–43. We reject

Mendoza’s contention that the agency improperly relied on the asylum officer’s

notes and testimony. See Li v. Ashcroft, 378 F.3d 959, 962–63 (9th Cir. 2004). In



       **
             The Honorable Jane A. Restani, Judge for the U.S. Court of
International Trade, sitting by designation.

                                          2
the absence of credible testimony, Mendoza’s asylum and withholding of removal

claims fail. See Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

      Because Mendoza’s CAT claim is based on the same testimony found to be

not credible, and Mendoza does not point to any other evidence that shows it is

more likely than not he would be tortured by, or with the acquiescence of, the

Salvadoran government, his CAT claim fails. See id. at 1157.

      Finally, we hold that the Board did not abuse its discretion in denying

Mendoza’s motion to reopen for cancellation of removal under the Nicaraguan

Adjustment and Central American Relief Act (NACARA). Although the Board

referenced its decision in Matter of Ortega-Cabrera, 23 I. & N. Dec. 793 (BIA

2005), which discusses eligibility for cancellation of removal under section

240A(b)(1) of the Immigration and Nationality Act (INA), see id. at 794–95, rather

than 8 C.F.R. § 1240.66(c), which governs eligibility for special rule cancellation

of removal under NACARA, we affirm the Board’s denial of the motion to reopen.

First, Mendoza failed to challenge the Board’s reliance on Ortega-Cabrera rather

than 8 C.F.R. § 1240.66(c) in his briefs, and has thus waived any argument to that

effect. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). Regardless, even

if this issue were before us, the result would be the same. Under either NACARA,

which requires an alien to be “physically present in the United States for a


                                          3
continuous period of not less than 10 years immediately following the commission

of an act,” 8 C.F.R. § 1240.66(c)(2), or the INA, which provides that removal may

be cancelled if an alien “has been physically present in the United States for a

continuous period of not less than 10 years immediately preceding the date of such

application,” 8 U.S.C. § 1229b(b)(1)(A), Mendoza would be incapable of showing

that he could “demonstrate the requisite 10 years of continuous physical presence

in the United States,” as the Board concluded.1

      PETITIONS FOR REVIEW DENIED.




      1
         At oral argument, the government acknowledged that the Board’s
reference to Ortega-Cabrera was incorrect and observed that there is a paucity of
cases interpreting the relevant provisions of NACARA. Because Mendoza has
waived this issue, and because the outcome of this case is unchanged regardless of
whether the “continuous physical presence” test of 8 C.F.R. § 1240.66(c)(2) or 8
U.S.C. § 1229b(b)(1)(A) is applied, we need not remand this case to the Board.
Nonetheless, we observe that the “continuous physical presence” language under
NACARA appears to be different from that under the INA, such that it might be
reversible error in a future case for the Board to rely on Ortega-Cabrera in the
NACARA context.

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