Edwin Hernandez-Garcia v. Eric Holder, Jr. , 576 F. App'x 705 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWIN HERNANDEZ-GARCIA, No. 12-71729
Petitioner, Agency No. A200-211-912
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2014**
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Edwin Hernandez-Garcia, a native and citizen of Honduras, petitions pro se
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
*
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”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence factual findings, and review de novo questions of law.
Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We dismiss in part,
deny in part, and grant in part the petition for review.
Hernandez-Garcia’s motion for bond or release is denied. Hernandez-
Garcia may seek administrative remedies. See, e.g., Leonardo v. Crawford, 646
F.3d 1157, 1160 (9th Cir. 2011).
Hernandez-Garcia’s motion for stay of removal was granted on September
7, 2012, so his second request for stay of removal is denied as moot. The stay
remains in effect until the mandate issues in this case.
We lack jurisdiction to review Hernandez-Garcia’s contention that the IJ
mischaracterized his testimony and failed to “engage” the evidence. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (court lacks jurisdiction to review
claims that could have been raised below).
Substantial evidence supports the BIA’s denial of CAT relief because
Hernandez-Garcia failed to show it is more likely than not he will be tortured with
the consent or acquiescence of the Honduran government. See Santos-Lemus v.
Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008).
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In finding that Hernandez-Garcia did not establish the Honduran government
was unable or unwilling to protect him, the BIA erred in relying exclusively on his
failure to report his encounters with gangs to the police. See Ornelas-Chavez v.
Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (concluding that the applicant need
not report to the police if he can establish that doing so would have been futile or
subjected him to further abuse). Furthermore, when the IJ and BIA issued their
decisions they did not have the benefit of either this court’s decisions in
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), and Cordoba
v. Holder, 726 F.3d 1106 (9th Cir. 2013), or the BIA’s decisions in Matter of M-E-
V-G-, 26 I. & N. Dec. 227 (BIA 2014), and Matter of W-G-R-, 26 I. & N. Dec. 208(BIA 2014). Thus, we grant the petition as to Hernandez-Garcia’s asylum and
withholding of removal claims and remand for further proceedings consistent with
this disposition, including a determination of the impact, if any, of these decisions.
See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).
Each party shall bear their own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part;
GRANTED in part; and REMANDED.
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