Renato Magnaye v. Loretta E. Lynch , 621 F. App'x 397 ( 2015 )

FILED
NOT FOR PUBLICATION OCT 22 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RENATO MAGNAYE, AKA Renato de No. 15-70251
Ocampo Magnaye,
Agency No. A079-396-145
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 14, 2015**
Before: SILVERMAN, BYBEE, and WATFORD, Circuit Judges.
Renato Magnaye, a native and citizen of the Philippines, petitions pro se for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and protection 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 the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d
1182, 1184-85 (9th Cir. 2006). We review for abuse of discretion the agency’s
denial of a motion to reopen. Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir.
2010). We deny in part and dismiss in part the petition for review.
We grant Magnaye’s motion for an extension of time to file a reply brief and
consider the arguments presented in the reply brief he submitted on September 28,
2015.
We do not consider the new materials Magnaye submits for the first time
with his opening brief. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (the
court’s review is limited to the administrative record).
The BIA did not abuse its discretion in determining that Magnaye failed to
establish the new evidence he submitted on appeal was previously unavailable or
would likely change the result in his case. See 8 C.F.R. § 1003.2(c); see also
Najmabadi, 597 F.3d at 988-90 (new evidence lacked materiality). The record
does not support Magnaye’s contention that the BIA failed to consider new
evidence or arguments he submitted on appeal to the BIA.
The record does not compel the conclusion that Magnaye established
changed or extraordinary circumstances to excuse the untimely filing of his asylum
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application. See 8 C.F.R. §§ 1208.4(a)(4),(5). Thus, Magnaye’s asylum claim
fails.
Substantial evidence supports the agency’s determination that Magnaye did
not establish his past experiences in the Philippines, including being hit with a
baton at a political rally and being detained on multiple occasions, rose to the level
of persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th Cir. 2006).
Further, the record does not compel the conclusion that it is more likely than not
that Magnaye would be persecuted if returned to the Philippines. See Fakhry v.
Mukasey, 524 F.3d 1057, 1065-66 (9th Cir. 2008) (evidence did not compel
finding that member of revolutionary group would more likely than not be
persecuted by the government). Thus, we deny the petition as to Magnaye’s
withholding of removal claim.
Substantial evidence also supports the agency’s denial of CAT relief because
Magnaye failed to show it is more likely than not he will be tortured by or with the
consent or acquiescence of the government if returned to the Philippines. See
Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). Thus, we deny the
petition as to Magnaye’s CAT claim.
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Magnaye’s challenge to the agency’s bond determination is not properly
before us. See 8 C.F.R. § 1003.19(d); Leonardo v. Crawford, 646 F.3d 1157, 1160
(9th Cir. 2011).
Finally, we deny Magnaye’s motion for a stay of removal as moot.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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