Avila De Paz v. Ashcroft

104 F. App'x 75

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2004
• Docket: No. 02-71473
• Status: Published

Opinion

MEMURANDUM

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Carlos Trinidad Avila De Paz, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) summary affirmance of an immigration judge’s (“IJ”) denial of his applications for asylum and withholding of deportation. Because the transitional rules apply, Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997), we have jurisdiction pursuant to 8 U.S.C. § 1105a(a). We deny the petition for review.

Avila De Paz challenges the IJ’s adverse credibility determination. Reviewing for substantial evidence, we conclude that the IJ’s adverse credibility determination is supported by specific and cogent explanations that go to the heart of the asylum claim. See Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir.2001) (per curiam).

Even if Avila De Paz testified truthfully, however, substantial evidence supports the IJ’s finding that he failed to establish a well-founded fear of persecution based on his refusal to join guerilla forces or retribution for his service in the Guatemalan military. Cf Cruz-Navarro v. INS, 232 F.3d 1024, 1028-29 (9th Cir.2000) (recognizing that former military service may in some instances support an asylum claim); Sangha v. INS, 103 F.3d 1482, 1490 (9th Cir.1997) (explaining that forced recruitment alone is insufficient to establish persecution on account of an enumerated ground).

Moreover, Avila De Paz’s subjective fear is unreasonable in light of changed country conditions, see Gonzalez-Hemandez v. Ashcroft, 336 F.3d 995, 1000 (9th Cir.2003) (upholding a denial of asylum based on changed country conditions where the agency rationally construes the country report and conducts an individualized analysis of how the changed conditions will af-feet the petitioner’s situation), and the fact that Avila De Paz’s own testimony demonstrated that he could safely relocate within Guatemala, Cf. Melkonian v. Ashcroft, 320 F.3d 1061, 1069 (9th Cir.2003).

Because Avila De Paz failed to establish eligibility for asylum, he necessarily failed to meet the more stringent standard for withholding of deportation. See Al-Harbi v. INS, 242 F.3d 882, 888-89 (9th Cir. 2001).

Finally, the BIA’s summary affirmance without opinion does not violate due process. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 850-51 (9th Cir.2003).

Pursuant to Elian v. Ashcroft, 370 F.3d 897 (9th Cir.2004) (order), Avila De Paz’s period of voluntary departure will begin to run upon issuance of this court’s mandate.

PETITION FOR REVIEW DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.