Raquel Hernandez Morales v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION APR 15 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAQUEL ANTONIO HERNANDEZ Nos. 09-70800
MORALES, 09-72549
Petitioner, Agency No. A072-441-812
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
In these consolidated petitions for review, Raquel Antonio Hernandez
Morales, a native and citizen of Guatemala, petitions for review of the Board of
Immigration Appeals’ (“BIA”) orders dismissing his appeal from an immigration
judge’s (“IJ”) removal order and denying his motion to reopen based on ineffective
*
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).
assistance of counsel. We have jurisdiction under 8 U.S.C. § 1252. We review de
novo constitutional claims and questions of law, we review for substantial evidence
the agency’s factual findings, and we review for abuse of discretion the denial of a
motion to reopen. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005).
In No. 09-70800, we deny the petition for review. In No. 09-72549, we grant the
petition for review and remand.
Substantial evidence supports the agency’s determination that Hernandez
Morales did not suffer past persecution by the guerrillas in Guatemala. See INS v.
Elias-Zacarias, 502 U.S. 478, 482 (1992) (attempted recruitment by guerillas,
without more, is insufficient to compel a finding of persecution on account of
political opinion); cf. Del Carmen Molina v. INS, 170 F.3d 1247, 1250 (9th Cir.
1999). Substantial evidence also supports the agency’s determination that
Hernandez Morales does not have a well-founded fear of future persecution by the
guerrillas. See Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir. 2002).
To the extent that Hernandez Morales contends he fears future harm from criminal
gangs as a Guatemalan returning from the United States, substantial evidence
supports the agency’s determination that such harm is not persecution on account
of a protected ground. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151-52 (9th
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Cir. 2010) (concluding that “returning Mexicans from the United States” is too
broad to qualify as a cognizable social group).
Because Hernandez Morales failed to establish eligibility for asylum, he
necessarily failed to meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence also supports the agency’s denial of relief under the
Convention Against Torture because Hernandez Morales did not establish that it
was more likely than not that he will be tortured by or with the acquiescence of the
Guatemalan government. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.
2008).
The BIA abused its discretion when it denied Hernandez Morales’ motion to
reopen for failure to establish prejudice. Hernandez Morales’ circumstantial
evidence of registration for benefits under the settlement in American Baptist
Churches v. Thornburgh, 760 F. Supp. 796 (N.D. Cal. 1991), submitted along with
the motion to reopen, is sufficient to establish that the withdrawal of his
application for relief under the Nicaraguan Adjustment and Central American
Relief Act “may have affected the outcome of the proceedings.” Iturribarria v.
INS, 321 F.3d 889, 899-90 (9th Cir. 2003). We therefore grant the petition for
review and remand to the BIA with instructions to remand to the IJ for an
3 09-70800
evidentiary hearing, at which the parties shall be permitted to present additional
evidence.
In No. 09-70800: PETITION FOR REVIEW DENIED.
In No. 09-72549: PETITION FOR REVIEW GRANTED;
REMANDED.
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