Dimas Cano Johnson v. Loretta E. Lynch , 632 F. App'x 395 ( 2016 )

FILED
NOT FOR PUBLICATION JAN 26 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMAS RENE CANO JOHNSON, AKA Nos. 12-72473
Dimas Rene Cano Jonhnson, 13-71015
Petitioner, Agency No. A094-293-609
v.
MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Dimas Rene Cano Johnson, a native and citizen of Honduras, petitions 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 protection under the Convention Against Torture
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
(“CAT”) (petition No. 12-72473), and of the BIA’s order denying his motion to
reopen (petition No. 13-71015). 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 review for
abuse of discretion the BIA’s denial of a motion to reopen, Cano-Merida v. INS,
311 F.3d 960, 964 (9th Cir. 2002), and we review de novo due process challenges
in immigration proceedings, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000).
We deny the petitions for review.
As to petition No. 12-72473, the record does not compel the conclusion that
Cano Johnson has established changed or extraordinary circumstances to excuse
his untimely asylum application. See 8 C.F.R. §§ 1208.4(a)(4), (5). Thus, we deny
the petition as to Cano Johnson’s asylum claim.
Substantial evidence supports the agency’s adverse credibility determination
based on Cano Johnson’s inconsistent accounts of his actions after an alleged
attack on his sister. See Shrestha, 590 F.3d at 1048 (adverse credibility
determination was reasonable under the “totality of circumstances”). Cano
Johnson’s explanations do not compel a contrary conclusion. See Lata v. INS, 204
F.3d 1241, 1245 (9th Cir. 2000). In the absence of credible testimony, Cano
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Johnson’s withholding of removal claim fails. See Farah v. Ashcroft, 348 F.3d
1153, 1156 (9th Cir. 2003).
Cano Johnson’s CAT claim fails because it is based on the same evidence
the agency found not credible, and he does not point to any other evidence that
compels the conclusion that it is more likely than not he would be tortured by or
with the acquiescence of the government if returned to Honduras. See Shrestha,
590 F.3d at 1048-49.
As to petition No. 13-71015, the BIA did not abuse its discretion when it
denied Cano Johnson’s motion to reopen to apply for cancellation of removal after
concluding that he was afforded an opportunity to present his application for
cancellation of removal during prior proceedings. See 8 C.F.R. § 1003.2(c)(1);
Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (BIA’s denial of a motion to
reopen shall be reversed only if it is “arbitrary, irrational or contrary to law”)
(internal quotation marks omitted). We reject Cano Johnson’s contention that the
IJ pretermitted his application for cancellation of removal in violation of due
process. See Lata, 204 F.3d at 1246 (requiring error to prevail on a due process
claim).
PETITIONS FOR REVIEW DENIED.
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