     Case: 11-60569     Document: 00511865163         Page: 1     Date Filed: 05/23/2012




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 23, 2012
                                     No. 11-60569
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CRISTOBAL JESUS MAIRENA,

                                                  Petitioner

v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A026 072 452


Before WIENER, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
        Petitioner Cristobal Jesus Mairena, a native and citizen of Nicaragua,
applied for asylum, withholding of removal, and relief under the Convention
Against Torture (CAT), based on his alleged persecution for not supporting the
Sandinista government.           The Immigration Judge (IJ) made an adverse
credibility finding and determined that Mairena was ineligible for adjustment
of status and cancellation of removal. The IJ’s decision was upheld by the Board



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
   Case: 11-60569   Document: 00511865163      Page: 2   Date Filed: 05/23/2012

                                  No. 11-60569

of Immigrations Appeals (BIA) when it dismissed Mairena’s administrative
appeal.
      Mairena claims that the IJ’s and BIA’s adverse credibility determination
was based on trivial inconsistencies. As Mairena’s application was filed prior to
the May 11, 2005, effective date of the REAL ID Act, its amended standards for
assessing credibility did not apply to his application. Wang v. Holder, 569 F.3d
531, 537 (5th Cir. 2009). When, prior to the pre-REAL ID Act, an IJ’s credibility
determination found support in the record, affirmation is proper unless the
record compels a contrary conclusion. Mwembie v. Gonzales, 443 F.3d 405, 410
(5th Cir. 2006).
      The inconsistencies between Mairena’s applications and his testimony
show that the adverse credibility determination was supported by the record.
See id. Conversely, a conclusion that Mairena was credible is not compelled by
the evidence. See id. Thus, we may not reverse this finding. See id.
      Mairena also contends that the BIA erred in determining that he received
a full and fair hearing in accordance with due process because (1) live witnesses
were unable to attend his rescheduled removal hearing and (2) the IJ excluded
Mairena’s brother’s testimony at the removal hearing. Mairena has failed to
show, however, that he was substantially prejudiced by the IJ’s actions. See
Calderone-Endeavors v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986).
      Mairena also contends that the BIA erroneously determined that he
received a full and fair hearing because the IJ acted as a partisan adjudicator.
Although the absence of a neutral arbiter may be the basis for a due process
claim, Wang, 569 F.3d at 540, Mairena has not demonstrated such a violation.
      Finally, Mairena asserts that the IJ and BIA erred in concluding that he
was ineligible for adjustment of status and cancellation of removal given that his
conviction for cocaine possession was not a “conviction” for immigration purposes
because adjudication of guilt was withheld and no form of punishment was
imposed. Section 1101(a)(48)(A) of Title 8 defines “conviction” as when (1) a

                                        2
   Case: 11-60569   Document: 00511865163      Page: 3   Date Filed: 05/23/2012

                                  No. 11-60569

formal judgment of guilt entered by the court or (2) an adjudication of guilt has
been withheld, but the alien has entered a plea of guilty and the judge has
imposed some form of punishment. Although adjudication of guilt was withheld
for his possession of cocaine conviction, Mairena pleaded guilty to the conviction
and was sentenced to 35 days in prison. Thus, his conviction was a “conviction”
for immigration purposes, and the IJ and BIA properly concluded that Mairena
was not entitled to adjustment of status or cancellation of removal. His petition
for review is therefore DENIED.




                                        3
