Lazaro Vail-Diaz v. Eric H. Holder Jr., No. 08-74634 (9th Cir. 2010)
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FILED NOV 17 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LAZARO NAZARIO VAIL-DIAZ, Petitioner, No. 08-74634 Agency No. A096-385-916 v. MEMORANDUM * ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 5, 2010 San Francisco, California Before: HALL and THOMAS, Circuit Judges, and RESTANI, Judge.** 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. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Jane A. Restani, Judge of the United States Court of International Trade, sitting by designation. The BIA properly rejected Vail-Diaz s asylum claim as time-barred. VailDiaz 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.R. § 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. 2
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