Julio Antonio Izquierdo v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULIO ANTONIO IZQUIERDO,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 06-74629
Agency No. A073-989-314
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted September 9, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**
Julio Antonio Izquierdo, a native and citizen of Peru, petitions for review
from the Immigration Judge’s (“IJ”) issuance of a final order of removal, following
the Board of Immigration Appeals’s (“BIA”) reversal of the IJ’s original grant of
FILED
SEP 27 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.

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asylum and adjustment of status relief. Although the government challenges the
petition as untimely because Petitioner did not seek review of the BIA’s remand
order, Petitioner was not required to do so under the then existing law of this
circuit. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 942 (9th Cir. 2004).
The matter is before us after a panel of this court originally granted
Petitioner’s petition for rehearing. In that petition and the supplemental briefing
this court requested, Petitioner contends that the BIA engaged in inappropriate
fact-finding when it overturned the IJ’s grant of relief. See 8 C.F.R.
§ 1003.1(d)(3)(i). The record does not bear this out.
Petitioner was a member of Peru’s National Guard at the time of a prison
riot by prisoners who were members of the “Shining Path.” Many of the rioters
were led out and executed by prison officials. He sought asylum, claiming fear of
Shining Path persecution. Before the IJ, the government contended that he was
barred from relief by having been a persecutor himself. See 8 U.S.C.
§ 1158(b)(2)(A)(i). The IJ rejected the government’s position and granted asylum
and adjustment of status.
On the government’s appeal the BIA reversed the grant of relief, holding
that the petitioner had no well-founded fear of future persecution from the Shining
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Path, and that his background, including some criminal brushes with the law in this
country, rendered adjustment of status inappropriate.
There is substantial evidence supporting the BIA decision. The BIA’s
analysis contains no facts that are inconsistent with the facts found by the
immigration judge, so we must reject Petitioner’s claim that the BIA engaged in
improper fact-finding. In the absence of any violation of the applicable
regulations, we lack jurisdiction to review the BIA’s discretionary determination
denying adjustment of status. With respect to asylum, the evidence in the record
does not compel a finding that the petitioner has a well-founded fear of persecution
from the Shining Path stemming from this episode that occurred in 1986.
Petitioner also seeks review of the BIA’s denial of petitioner’s subsequent
motion to reopen. There was no abuse of discretion. The motion did not contain
any new material bearing on hardship or indicating that petitioner would be
targeted by the Shining Path.
The petition for review is DENIED.
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