Edy Dominguez Pena v. Jefferson Sessions ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDY JOSE DOMINGUEZ PENA, AKA No. 13-72534
Eddie Jose Dominguez, AKA Eddy
Dominguez, AKA Edy J. Dominguez Pena, Agency No. A094-289-027
AKA Edy Jose DominguezPena, AKA Edy
Jose Pena,
MEMORANDUM *
Petitioner,
v.
JEFF B. SESSIONS, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Edy Jose Dominguez Pena, a native and citizen of Honduras, petitions pro se
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to remand, and dismissing his appeal from an immigration judge’s (“IJ”)
*
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).
decision denying his application for asylum, withholding of removal, and relief
under the Convention Against Torture (“CAT”). We have jurisdiction under 8
U.S.C. § 1252. We review for substantial evidence the agency’s factual findings,
Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008), and we review for abuse
of discretion the denial of a motion to remand, Romero-Ruiz v. Mukasey, 538 F.3d
1057, 1062 (9th Cir. 2008). We deny in part and grant in part the petition for
review, and we remand.
The BIA did not abuse its discretion in denying Dominguez Pena’s motion
to remand, because he failed to establish prima facie eligibility for relief. See
Romero-Ruiz, 538 F.3d at 1063 (the requirements for a motion to reopen and a
motion to remand are the same); see Najmabadi v. Holder, 597 F.3d 983, 986 (9th
Cir. 2010) (the agency can deny a motion to reopen for failure to establish a prima
facie case for the relief sought).
Substantial evidence supports the agency’s determination that Dominguez
Pena did not establish that he suffered any harm in Honduras. See 8 C.F.R.
§ 1208.13(b)(1) (past persecution must have been suffered “in the applicant’s
country of nationality”). Substantial evidence also supports the agency’s finding
that Dominguez Pena failed to establish his feared future persecution was on
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account of a protected ground. See INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992) (“[S]ince the statute makes motive critical, [an applicant] must provide
some evidence of it, direct or circumstantial”); see Ochave v. INS, 254 F.3d 859,
865 (9th Cir. 2001) (“Asylum generally is not available to victims of civil strife,
unless they are singled out on account of a protected ground.”). Thus, Dominguez
Pena’s asylum and withholding of removal claims fail.
In affirming the IJ’s denial of CAT relief, the BIA did not address
Dominguez Pena’s contention that the IJ erred by failing to find any facts or
provide any analysis in support of her denial of his CAT claim. See Montes-Lopez
v. Gonzales, 486 F.3d 1163, 1165 (9th Cir. 2007) (“We think it goes without
saying that IJs and the BIA are not free to ignore arguments raised by a
petitioner.”) (quoting Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)).
Thus, we grant the petition for review as to Dominguez Pena’s CAT claim and
remand for further proceedings consistent with this disposition. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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