Luis Gustavo Garcia v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS GUSTAVO GARCIA,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
Nos. 10-71553
10-73219
Agency No. A094-828-492
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
In these consolidated petitions for review, Luis Gustavo Garcia, a native and
citizen of Honduras, petitions for review of an order of the Board of Immigration
Appeals (“BIA”) dismissing his appeal from an immigration judge’s (“IJ”)
decision denying Garcia’s applications for asylum, withholding of removal, and
FILED
FEB 14 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 4 --

10-73219 2
relief under the Convention Against Torture (“CAT”) (No. 10-71553), and of the
BIA’s subsequent order denying Garcia’s motion to reconsider and reopen (No.
10-73219). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, Ornelas-Chavez v. Gonzales,
458 F.3d 1052, 1055-56 (9th Cir. 2006), and review for abuse of discretion the
BIA’s denial of a motion to reconsider and reopen, Najmabadi v. Holder, 597 F.3d
983, 986 (9th Cir. 2010). We deny the petitions for review.
Garcia does not raise any challenge to the agency’s dispositive
determination that his asylum application is time-barred. Furthermore, substantial
evidence supports the BIA’s determination that Garcia failed to demonstrate
eligibility for humanitarian relief based on the severity of past persecution. See
Vongsakdy v. INS, 171 F.3d 1203, 1205 (9th Cir. 1999) (humanitarian relief based
on severity of past harm is reserved for cases of “atrocious” persecution).
Substantial evidence supports the BIA’s finding that Garcia failed to
establish past persecution because he did not demonstrate that the Honduran
government was “unable or unwilling to control” his attackers, where he did not
report all the incidents to the police. See Knezevic v. Ashcroft, 367 F.3d 1206,
1211 (9th Cir. 2004). The record does not compel the conclusion that the
government was unwilling or unable to protect him. See Rahimzadeh v. Holder,

-- 2 of 4 --

10-73219 3
613 F.3d 916, 921-23 (9th Cir. 2010) (discussing various means by which a
petitioner may fill the “gap in proof” left by the absence of a report to the police).
Substantial evidence also supports the BIA’s determination that Garcia failed to
establish it is more likely than not he will be persecuted on account of his political
opinion if returned to Honduras. See Tamang v. Holder, 598 F.3d 1083, 1094-95
(9th Cir. 2010) (vague threats alleged against family do not compel finding of clear
probability of future persecution). In light of this determination, the BIA did not
err in declining to address the IJ’s findings regarding relocation. Accordingly,
Garcia’s withholding of removal claim fails.
Further, substantial evidence supports the BIA’s determination that Garcia
failed to demonstrate that it is more likely than not he will be tortured by or with
the acquiescence of the government if he returns to Honduras. See id. at 1095.
Accordingly, Garcia’s CAT claim fails.
Finally, the BIA did not abuse its discretion in denying Garcia’s motion to
reconsider and reopen. See 8 C.F.R. § 1003.2(b)(1) (motion to reconsider must
“specify errors of fact or law” in the underlying decision); 8 C.F.R. § 1003.2(c)(1)
(motion to reopen must “state the new facts” that will be established at a hearing);
see also Membreno v. Gonzales, 425 F.3d 1227, 1229-30 (9th Cir. 2005) (en banc)

-- 3 of 4 --

10-73219 4
(assertion of a new legal argument does not constitute new facts warranting
reopening).
PETITIONS FOR REVIEW DENIED.

-- 4 of 4 --