Yury Junior Galeas Melendez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
YURI JUNIOR GALEAS MELENDEZ, No. 09-71500
etc.,
Agency No. A094 354 683
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, JR., United States
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 9, 2011 **
Seattle, Washington
Before: GUY, *** McKEOWN, and TALLMAN, Circuit Judges.
*
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).
***
The Honorable Ralph B. Guy, Jr., Senior Circuit Judge for the Sixth
Circuit, sitting by designation.
Petitioner, Yuri Melendez, appeals from the decision of the Board of
Immigration Appeals (Board) denying his motion to remand and reopen. Melendez
sought an opportunity to apply for asylum and withholding of removal because he
failed to demonstrate prima facie eligibility for cancellation of removal. An
immigration judge had earlier found Melendez ineligible for cancellation of removal
because his 2001 conviction for cocaine possession stopped the accrual of the
requisite 10-year period of continuous physical presence in the United States upon
which Melendez had relied as a ground for cancellation of the order of removal.
A finding that a movant has failed to establish prima facie eligibility for
withholding of removal is an appropriate ground on which to deny a motion to reopen.
INS v. Abudu, 485 U.S. 94, 104 (1988). Our standard of review is abuse of
discretion, and a heavy burden is placed upon a movant seeking reopening of removal
proceedings. INS v. Doherty, 502 U.S. 314, 322-23 (1992). We find no abuse of
discretion here. Melendez claims that if he is removed, his handicapped son could
face sexual abuse in El Salvador. Melendez’s wife testified, however, that she and her
son, both United States citizens, will remain in the United States even if Melendez is
removed. Similarly, we conclude that the Board was correct in finding that
Petitioner’s asylum claim, based on fear of future persecution, was not supported by
the record. Having failed to demonstrate eligibility for asylum, it follows that
2 09-71500
petitioner also failed to make a prima facie case for withholding of removal.
PETITION DENIED.
3 09-71500