Jorge Mayta v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE MAYTA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 11-70772
Agency No. A076-868-372
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 19, 2014
San Francisco, California
Before: BERZON and RAWLINSON, Circuit Judges, and BUCKLO, Senior
District Judge. **
Petitioner Jorge Mayta petitions for review of a decision of the Board of
Immigration Appeals (BIA) dismissing his appeal from the denial of his
FILED
FEB 19 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Elaine E. Bucklo, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.

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applications for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT).
This court lacks jurisdiction to review the BIA’s ruling on the timeliness of
Mayta’s asylum application because Mayta does not raise a constitutional claim or
a question of law, and the facts are disputed. See Ramadan v. Gonzales, 479 F.3d
646, 650 (9th Cir. 2007) (limiting our jurisdiction over discretionary decisions to
constitutional claims or questions of law); Tamang v. Holder, 598 F.3d 1083, 1089
(9th Cir. 2010) (limiting our jurisdiction over the “extraordinary circumstances”
exception to the timeliness requirement to cases where the facts are not disputed).
Substantial evidence supports the finding that Mayta is ineligible for
withholding of removal because he “ordered, incited, assisted, or otherwise
participated in” the persecution of others. 8 U.S.C. § 1101(a)(42); see also 8
U.S.C. § 1231(b)(3)(B)(i); 8 C.F.R. §§ 208.16(d)(2), 1208.16(d)(2); Miranda
Alvarado v. Gonzales, 449 F.3d 915, 918-19 (9th Cir. 2006). Where the evidence
indicates that an applicant is barred from obtaining relief in the form of
withholding of removal, the applicant has the burden of proof “to show by a
preponderance of the evidence” that the bar does not apply. Miranda Alvarado,
449 F.3d at 930; 8 C.F.R. § 208.16(d)(2).
2

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Mayta’s original asylum declaration, in which he stated that he served as a
lookout while Shining Path members “eliminate[d]” critics of the group on three
separate occasions in 1992, was prima facie evidence that Mayta was ineligible for
relief under the persecutor bar. Mayta failed to meet his burden of proving by a
preponderance of the evidence that the bar did not apply to him. The only
evidence he presented to rebut the original declaration was a second declaration
and his own testimony attempting to explain that the original declaration was
erroneously translated. The IJ did not credit that explanation.
Substantial evidence supports the agency’s adverse credibility finding
because Mayta’s version of events changed multiple times, and the IJ disbelieved
the reason he gave for the inconsistences between his original declaration under
oath, and his later declaration and testimony.
Assuming, without deciding, that there is a duress exception to the
persecutor bar, see Negusie v. Holder, 555 U.S. 551, 522-23 (2009), Mayta also
has not shown that he participated in persecution under duress. The only evidence
Mayta presented that he was “pressured” to continue participating in Shining Path
activities was his own uncorroborated testimony, which again, the agency validly
found not credible.
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The denial of CAT relief is also supported by substantial evidence because
Mayta has not carried his burden to show that it is “more likely than not” that he
would be tortured by or with the acquiescence of the Peruvian government if he
returns to Peru. Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).
PETITION DENIED.
4

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