Roberto Alfredo Schmidt Urrutia v. ERIC H. HOLDER, JR., Attorney General

This disposition is not appropriate for publication and is not precedent except as*
provided by 9th Cir. R. 36-3.
The Honorable Eugene E. Siler, Jr., Senior United States Circuit Judge for the**
Sixth Circuit, sitting by designation.
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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO ALFREDO SCHMIDT
URRUTIA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
No. 08-70556
Agency No. A035-775-0654
MEMORANDUM*
On Petition for Review of an Order of
the Board of Immigration Appeals
Argued and Submitted November 2, 2009
Pasadena, California
Before: SCHROEDER, SILER, and IKUTA, Circuit Judges.**
FILED
DEC 30 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Roberto Alfredo Schmidt Urrutia petitions for review of the Board of
Immigration Appeals’ (BIA) order dismissing his appeal from an immigration judge’s
(IJ) decision denying his application for asylum, withholding of removal, and relief
under the Convention Against Torture (CAT). We deny the petition.
Where, as here, the BIA adopts the IJ’s decision and also adds its own reasons,
we review both decisions. See Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir.
2005). The BIA’s findings are reviewed as the final agency action. Id. To the extent
that the BIA simply affirms the IJ, we also review the IJ’s decision as if it were the
final agency action. Id.
“[W]e review de novo the BIA’s determination of questions of law, except to
the extent that deference is owed to its interpretation of the governing statutes and
regulations.” Castillo-Cruz v. Holder, 581 F.3d 1154, 1158-59 (9th Cir. 2009)
(citations and internal quotation marks omitted). Factual findings underlying the
BIA’s final order are reviewed for substantial evidence. Zehatye v. Gonzales, 453
F.3d 1182, 1184-85 (9th Cir. 2006). The BIA’s determinations regarding eligibility
for asylum, withholding of removal, or relief under the CAT must be upheld if they
are “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (citation

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The BIA’s determination that Urrutia failed to show changed circumstances is a1
mixed question of law and fact subject to our review under the Real ID Act, Pub L.
No. 109-13 § 106(a) (2005). See Ramadan v. Gonzales, 479 F.3d 646, 648 (9th Cir.
2007).
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omitted). To reverse the BIA’s factual determination we must find that the evidence
not only supports that conclusion, but compels it. Id. at 481 n.1.
Because Urrutia’s application for asylum was untimely, it is statutorily barred
unless he can demonstrate the existence of changed circumstances which materially
affect his eligibility for asylum. See 8 U.S.C. §§ 1158(a)(2)(B), 1158(a)(2)(D).1
Urrutia asserts that learning about an outstanding warrant for his arrest on charges of
aggravated fraud constitutes a changed circumstance that should excuse his untimely
filing of an application for asylum. We disagree. Assuming his credibility, Urrutia
fled El Salvador because of the threats against him. The knowledge of an arrest
warrant issued against him may have intensified Urrutia’s fears, but it does not
constitute a changed circumstance that materially affected his eligibility for asylum.
See 8 C.F.R. § 1208.4(a)(4). Thus, Urrutia’s petition for asylum is statutorily barred.
See 8 U.S.C. § 1158(a)(2)(B).
Although certainly unpleasant, the threats and harm that Urrutia endured in El
Salvador did not rise to the level of persecution. See Korablina v. INS, 158 F.3d 1038,
1043 (9th Cir. 1998). Moreover, the record does not compel a finding that Urrutia is

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more likely than not to be persecuted or tortured if forced to return to El Salvador.
See Muradin v. Gonzales, 494 F.3d 1208, 1210-11 (9th Cir. 2007).
PETITION DENIED.

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