Jose Garcia-Santacruz v. Eric H. Holder Jr. ( 2011 )

FILED
NOT FOR PUBLICATION JUL 19 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE GARCIA-SANTACRUZ, a.k.a. Jose No. 08-71158
Lopez-Gomez,
Agency No. A028-776-911
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Jose Garcia-Santacruz, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order sustaining the
government’s appeal from an immigration judge’s (“IJ”) decision granting his
application for asylum. We have jurisdiction under 8 U.S.C. § 1252. We review
*
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).
for substantial evidence factual findings, Zehatye v. Gonzales, 453 F.3d 1182,
1184-85 (9th Cir. 2006), and de novo claims of due process violations in
immigration proceedings, Sandoval-Luna v. Mukasey, 526 F.3d 1243, 1246 (9th
Cir. 2008). We deny the petition for review.
Substantial evidence supports the BIA’s finding that Garcia-Santacruz failed
to demonstrate that either his kidnaping or the threatening phone calls his mother
received from guerrillas were on account of a protected ground. See INS v.
Elias-Zacarias, 502 U.S. 478, 481-82 (1992); Tecun-Florian v. INS, 207 F.3d
1107, 1109 (9th Cir. 2000). Accordingly, Garcia-Santacruz’s asylum claim fails.
See Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir. 2005).
Because Garcia-Santacruz failed to establish his eligibility for asylum, he
necessarily failed to meet the higher standard of eligibility for withholding of
deportation. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir. 1995).
Finally, we reject Garcia-Santacruz’s contention that the IJ violated his due
process rights by declining to reconsider his asylum and withholding of
deportation claims on remand when the BIA had already reversed the IJ’s grant of
asylum. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to
prevail in due process claim).
PETITION FOR REVIEW DENIED.
2 08-71158