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Vail-Diaz v. H. Holder

United States Court of Appeals, Ninth Circuit
Nov 17, 2010
403 F. App'x 286 (9th Cir. 2010)

Opinion

No. 08-74634.

Argued and Submitted November 5, 2010.

Filed November 17, 2010.

Teresa Salazar-Cosmos, Daly City, CA, pro se.

Ada Elsie Bosque, U.S. Department of Justice, Washington, DC, Ronald E. Lefevre, Office of the District Counsel Department of Homeland Security, San Francisco, CA, for Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A096-385-916.

Before: HALL and THOMAS, Circuit Judges, and RESTANI, Judge.

The Honorable J. Michael Seabright, United States District Judge for the District of Hawaii, sitting by designation.


MEMOKANDUM

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Lazaro Nazario Vail-Diaz, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals ("BIA") decision affirming the immigration judge's denial of his applications for asylum, withholding of removal, and protection under the Convention Against Torture. We deny the petition.

The BIA properly rejected Vail-Diaz's asylum claim as time-barred. Vail-Diaz did not file an application for asylum within the statutorily mandated period of one year. 8 U.S.C. § 1158(a)(2)(B). Substantial evidence supports the BIA's conclusion that Vail-Diaz had not proven the extraordinary circumstances necessary to justify the late filing.

Substantial evidence also supports the BIA's adverse credibility determination. Vail-Diaz's testimony was inconsistent on numerous occasions, and those inconsistencies went to the heart of his claim. In addition, when read as a whole, the record demonstrates frequent changes in Vail-Diaz's story when asked for clarification about the details, which supports the BIA's determination that he was not credible. Therefore, the BIA did not err in rejecting his application for withholding of removal.

Substantial evidence also supports the BIA's conclusion that Vial-Diaz did not establish it was more likely than not that he would be tortured upon his return to Guatemala, and thus ineligible for relief under the Convention Against Torture. 8 C.F.K. § 1208.16(c)(2). Vial-Diaz has returned to Guatemala numerous times since he left, and his wife and children continue to live there unharmed.

PETITION DENIED.


Summaries of

Vail-Diaz v. H. Holder

United States Court of Appeals, Ninth Circuit
Nov 17, 2010
403 F. App'x 286 (9th Cir. 2010)
Case details for

Vail-Diaz v. H. Holder

Case Details

Full title:Lazaro Nazario VAIL-DIAZ, Petitioner v. Eric H. HOLDER, Jr., Attorney…

Court:United States Court of Appeals, Ninth Circuit

Date published: Nov 17, 2010

Citations

403 F. App'x 286 (9th Cir. 2010)