     Case: 10-60764     Document: 00511545651         Page: 1     Date Filed: 07/20/2011




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

                                                                            FILED
                                                                            July 20, 2011
                                     No. 10-60764
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

LEONIDAS ORDONES MEJIA; ELVA SANTOS MENDEZ DE ORDONEZ;
VIVIAN ORDONES SANTOS,

                                                  Petitioners

v.

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

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A088 665 263
                                BIA No. A088 665 266
                                BIA No. A088 665 267


Before DAVIS, SMITH and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Leonidas Ordones Mejia (Ordones), his wife Elva Santos Mendez de
Ordones, and their minor daughter, Vivian Ordones Santos, natives and citizens
of Guatemala, applied for asylum, withholding of removal, and relief under the
Convention Against Torture (CAT) based on alleged persecution in retaliation
for Ordones’s actions as a police officer in arresting criminal gang members in

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-60764    Document: 00511545651       Page: 2   Date Filed: 07/20/2011

                                   No. 10-60764

Guatemala. Their applications were denied based on the adverse credibility
determination of the immigration judge (IJ), which was upheld by the Board of
Immigration Appeals (BIA) when it dismissed their administrative appeal.
      Ordones argues that the record does not support the IJ’s and BIA’s adverse
credibility determinations. Ordones argues that the IJ erred by basing his
credibility finding on three “inconsistencies” which he claims is not supported by
the record. The first claimed inconsistency concerns when the threats began.
Ordones contends that this inconsistency is non-existent. Ordones argues that
the second inconsistency, regarding when his partner died, is also non-existent
and is based upon the IJ’s misreading of the record. The third inconsistency
relates to statements made by Ordones about his reasons for coming to the
United States and whether he feared harm if he returned to Guatemala.
Ordones explains that the inconsistency was due to fear and a lack of full
communication and understanding with the Border Patrol agent, who could not
speak Spanish.
      We review an immigration court’s findings of fact for substantial evidence.
Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009). We will not reverse an
immigration court’s factual findings unless “the evidence was so compelling that
no reasonable factfinder could conclude against it.” Id. at 537. Among the
findings of fact that we review for substantial evidence is an immigration court’s
conclusion that an alien is not eligible for asylum, withholding of removal, or
relief under the CAT. Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005).
      Pursuant to the REAL ID Act of 2005, “an IJ may rely on any
inconsistency or omission in making an adverse credibility determination as long
as the totality of the circumstances establishes that an asylum applicant is not
credible.”   Wang, 569 F.3d at 538 (internal quotation marks and citation
omitted); see also 8 U.S.C. § 1158(b)(1)(B)(iii). We will “defer therefore to an IJ’s
credibility determination unless, from the totality of the circumstances, it is



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plain that no reasonable fact-finder could make such an adverse credibility
ruling.” Wang, 569 F.3d at 538 (internal quotation marks and citation omitted).
      Ordones testified that after the arrests in January 2007, he began
receiving telephonic death threats. Ordones had previously told the Asylum
Officer in his August 20, 2007, credible fear interview that the threats began in
“October of last year,” which would have been October 2006. The discrepancy
identified by the IJ between Ordones’s testimony and his prior statement to the
Asylum Officer regarding when the threats began is evident in the record.
      In his asylum application, Ordones stated that his partner died within
“perhaps fifteen days” after they arrested the men. However, at his hearing,
Ordones testified that he could not remember when his partner died, not even
the month or the year. The record does not compel the conclusion that what he
really meant was that he could not recall the “exact” date. See Wang, 569 F.3d
at 538-39.
      The record shows that Ordones told a Border Patrol agent in an August 3,
2007, sworn statement that he came to the United States to find work and for
a better life and that he had no fear of returning to Guatemala. Ordones
admitted in his testimony that he told the Border Patrol agent that he had no
fear of returning to Guatemala and that he would not be harmed there. Ordones
testified that he made the statement to the Border Patrol agent because he was
“afraid,” because “of what I was going through in my country and since I was
caught, I didn’t even know what to do,” because he had been detained for “too
many days,” because he was worried about what his daughter was going
through, and because wanted to “leave that place where I was detained.” He
also testified that he did not understand much because the Border agent spoke
a different Spanish. The BIA and the IJ considered and rejected Ordones’s
explanation. Nothing in the record compels belief in his explanation. See Wang,
569 F.3d at 539 (upholding the IJ’s adverse credibility finding because nothing



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                                  No. 10-60764

in the record compelled belief in the applicant’s story, including alleged problems
with Chinese interpreter).
      An additional reason given by the BIA for doubting Ordones’s credibility
is unchallenged by Ordones. The BIA found that Ordones first testified that the
only reason he thought the men he arrested were from La Banda de Los Sicarios
was because they had high-caliber weapons and a stolen vehicle, but he later
testified that he knew the men were with the group because they told him they
were the chiefs of the group. The contradiction cannot be reasonably reconciled
– if the men explicitly stated that they were members of the gang, Ordones had
no reason to speculate based on their weapons. Ordones fails to address this
contradiction.
      In light of the inconsistencies found by the IJ and the BIA, it is not “plain
that no reasonable fact-finder could make such an adverse credibility ruling.”
Wang, 569 F.3d at 538 (internal quotation marks and citation omitted).
      Ordones’s asylum, withholding, and CAT claims, and the derivative claims
of his family, were all based on alleged persecution in retaliation for his actions
in arresting criminal gang members in Guatemala. Petitioners presented the
same factual basis for all claims, and therefore, the adverse credibility findings
that warranted denial of asylum and withholding of removal also warrant the
denial of CAT relief. See Efe v. Ashcroft, 293 F.3d 899, 906-08 (5th Cir. 2002)
(noting that credibility assessment went directly to the issue of whether Efe
would be tortured).
      Because the credibility determinations of the IJ and BIA withstand
review, the decision to deny Ordones and his family relief is supported by
substantial evidence.     See Zhang, 432 F.3d at 344-45.         Therefore, it is
unnecessary to address the agency’s alternative finding concerning failure to
establish a protected ground.
      PETITION DENIED.



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