Pedro Calel-Gomez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 14-71272
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PEDRO CALEL-GOMEZ; MARIA Nos. 14-71272 ESTELA HERNANDEZ DE CALEL, 14-73649

Petitioners, Agency Nos. A071-590-089 A088-487-404 v.

WILLIAM P. BARR, Attorney General, MEMORANDUM*

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted February 19, 2019**

Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.

In these consolidated petitions, Pedro Calel-Gomez and Maria Estela

Hernandez de Calel, natives and citizens of Guatemala, petition for review of the

Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an

immigration judge’s decision denying their applications for asylum, withholding of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). removal, and relief under the Convention Against Torture (“CAT”) (petition No.

14-71272) and of the BIA’s order denying their motion to reopen removal

proceedings (petition No. 14-73649). We have jurisdiction under 8 U.S.C. § 1252.

We review for substantial evidence the agency’s factual findings and review for

abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder,

597 F.3d 983, 986 (9th Cir. 2010). We deny the petitions for review.

As to petition No. 14-71272, even considering petitioners’ status as

indigenous persons and Hernandez de Calel’s proposed particular social group,

substantial evidence supports the agency’s determination that petitioners failed to

establish a well-founded fear of future persecution on account of a protected

ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if

membership in a particular social group is established, an applicant must still show

that “persecution was or will be on account of his membership in such group”

(emphasis in original)); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.

2010) (applicant’s “desire to be free from harassment by criminals motivated by

theft or random violence by gang members bears no nexus to a protected ground”).

Thus, petitioners’ asylum and withholding of removal claims fail.

Substantial evidence also supports the agency’s denial of CAT relief because

2 14-71272/14-73649 petitioners failed to establish that it is more likely than not they would be tortured

by or with the consent or acquiescence of the Guatemalan government. See

Alphonsus v. Holder, 705 F.3d 1031, 1049 (9th Cir. 2013) (despite “troubling

country reports,” evidence did not compel the conclusion that it was more likely

than not that petitioner would be tortured upon return), abrogated on other grounds

by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018).

We reject petitioners’ contention that the BIA failed to address adequately

their evidence or to explain its decision. See Najmabadi, 597 F.3d at 990 (the BIA

“does not have to write an exegesis on every contention”). We also reject

petitioners’ contention that the BIA applied the wrong legal standard to their

asylum claims.

As to petition No. 14-73649, the BIA did not abuse its discretion in denying

the motion to reopen where petitioners failed to present previously unavailable and

material evidence. See 8 C.F.R. § 1003.2(c); see also Najmabadi, 597 F.3d at 987-

990 (evidence must be “qualitatively different” to warrant reopening).

PETITIONS FOR REVIEW DENIED.

3 14-71272/14-73649