Carlos Samayoa-Dela Rosa v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 3, 2018
• Docket: 15-73041
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 3 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS GEOVANNI SAMAYOA-DELA No. 15-73041 ROSA, Agency No. A095-755-173 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted November 27, 2018**

Before: CANBY, TASHIMA, and FRIEDLAND, Circuit Judges.

Carlos Geovanni Samayoa-Dela Rosa, a native and citizen of Guatemala,

petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s decision denying his

application for asylum, withholding of removal, and relief under the Convention

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We

review for substantial evidence the agency’s factual findings, applying the

standards governing adverse credibility determinations created by the REAL ID

Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We deny the

petition for review.

Samayoa-Dela Rosa does not challenge the agency’s dispositive conclusion

that his asylum application was untimely and that he failed to establish any

changed or extraordinary circumstances to excuse the untimely filing. See

Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not

specifically raised and argued in a party’s opening brief are waived). Thus, his

asylum claim fails.

Substantial evidence supports the agency’s adverse credibility determination

based on inconsistencies between Samayoa-Dela Rosa’s testimony and declaration

as to the events of his first interaction with gang members, who caused Samayoa-

Dela Rosa’s motorcycle accident, the identity of his grandfather’s murderer, and

based on the omission of Samayoa-Dela Rosa’s cousin’s murder from his

declaration. See Shrestha, 590 F.3d at 1048 (adverse credibility finding reasonable

under the totality of the circumstances). In this case, in the absence of credible

2 15-73041 testimony, Samayoa-Dela Rosa’s withholding of removal claim fails. See Farah v.

Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

Finally, Samayoa-Dela Rosa’s CAT claim fails because it is based on the

same testimony the agency found not credible, and Samayoa-Dela Rosa does not

point to any other evidence in the record that compels the conclusion that it is more

likely than not he would be tortured by or with the consent or acquiescence of the

government of Guatemala. See id. at 1156-57.

PETITION FOR REVIEW DENIED.

3 15-73041