Horta Garcia v. Gonzales , 476 F. App'x 134 ( 2012 )

FILED
NOT FOR PUBLICATION AUG 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
VICTOR HUGO HORTA GARCIA, No. 06-75548
Petitioner, Agency No. A070-962-853
v.
MEMORANDUM *
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 8, 2012 **
Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.
Victor Hugo Horta Garcia, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s decision denying his application for asylum. We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual
*
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).
findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the
petition for review.
Horta Garcia contends the agency erred in finding he did not establish past
persecution based on an imputed political opinion. Substantial evidence supports
the agency’s determination that Horta Garcia failed to establish the harm he and his
family suffered was on account of a protected ground. See INS v. Elias-Zacarias,
502 U.S. 478, 483 (1992) (petitioner must provide some evidence, direct or
circumstantial, of persecutor’s motive). In light of this conclusion, we need not
address Horta Garcia’s contention that the agency erred in considering only the
threats he received in Guatemala. Further, Horta Garcia’s reliance on the
presumption of future persecution fails because he did not establish past
persecution, see Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002), and
he does not otherwise challenge the agency’s conclusion that he failed to establish
a reasonable fear of future persecution. Accordingly, Horta Garcia’s asylum claim
fails. See Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir. 2005).
PETITION FOR REVIEW DENIED.
2 06-75548
FILED
Horta Garcia v. Holder, No. 06-75548 AUG 14 2012
BERZON, Circuit Judge, concurring:
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
I concur on the ground that Horta Garcia did not raise before the Board of
Immigration Appeals (“BIA”) the primary issue he now raises–that his and his
family’s professed neutrality in the Guatemalan civil unrest in the 1980s
constitutes an imputed political opinion for purposes of the nexus requirement. His
brief to the BIA asserted only persecution on account of “his familial relationship.”