Mendoza v. Holder
Opinion of the Court
MEMORANDUM
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 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.
PETITIONS FOR REVIEW DENIED.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
. 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)(l)(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.
Reference
- Full Case Name
- Marco Antonio MENDOZA v. Eric H. HOLDER, Jr., Attorney General, Respondent Marco Antonio Mendoza v. Eric H. Holder, Jr., Attorney General
- Status
- Published