Eduardo Francisco Silva-Toro v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDUARDO FRANCISCO SILVA-TORO,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Nos. 12-70999, 12-74090
Agency No. A070-552-901
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 9, 2016
Pasadena, California
Before: BERZON, DAVIS**, and OWENS, Circuit Judges.
Eduardo Francisco Silva-Toro seeks review of the March and November
2012 decisions of the Board of Immigration Appeals (“BIA”), which denied his
January and October 2012 motions to reopen deportation proceedings and to
FILED
MAR 21 2016
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 Andre M. Davis, Senior Circuit Judge for the U.S.
Court of Appeals for the Fourth Circuit, sitting by designation.

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reconsider the BIA’s determination that he is ineligible for asylum or withholding
of removal. We dismiss in part and deny in part Silva-Toro’s petitions for review.
We review the denial of a motion to reopen or reconsider for abuse of
discretion. Cano-Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002). “The BIA
abuses its discretion when it acts arbitrarily, irrationally, or contrary to the law, and
when it fails to provide a reasoned explanation for its actions.” Singh v. Holder,
771 F.3d 647, 650 (9th Cir. 2014) (quoting Tadevosyan v. Holder, 743 F.3d 1250,
1252–53 (9th Cir. 2014)).
Silva-Toro first contends that the BIA improperly construed the portion of
his January 2012 motion challenging his classification as a persecutor as a motion
to reconsider rather than as a motion to reopen. Silva-Toro did not purport to
present any new evidence pertaining to his persecutor designation with this motion;
instead, he suggested that the BIA had erred as a matter of law or fact by
concluding that he had assisted in persecution. Accordingly, the BIA did not abuse
its discretion in construing this portion of Silva-Toro’s January 2012 motion as a
motion to reconsider. See Iturribarria v. INS, 321 F.3d 889, 896 (9th Cir. 2003)
(recognizing that “[t]he purpose of a motion to reopen is to present new facts or
evidence that would entitle the alien to relief from deportation,” while “the purpose
of a motion to reconsider is not to raise new facts, but rather to demonstrate that the
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IJ or the BIA erred as a matter of law or fact” (alteration omitted) (quoting Socop-
Gonzalez v. INS, 272 F.3d 1176, 1180 & n.2 (9th Cir. 2001) (en banc))).
Silva-Toro next argues that the BIA erred in denying his January 2012
motion to reconsider the BIA’s determination that he was a persecutor. The BIA
acts within its discretion when it denies a motion to reconsider that fails to identify
any error of law or fact in the BIA’s prior decision. See 8 C.F.R. § 1003.2(b)(1).
In Silva-Toro’s case, this Court previously affirmed the BIA’s determination that
Silva-Toro was a persecutor–that is, this Court has already held that the BIA did
not err in concluding that Silva-Toro had participated in the persecution of
members of the Shining Path. See Silva-Toro v. INS, 13 F. App’x 557, 558 (9th
Cir. 2001) (unpublished). In light of this previous decision and the fact that Silva-
Toro’s motion to reconsider, by definition, did not present any new evidence that
could have altered this analysis, we hold that the BIA did not abuse its discretion in
denying this portion of Silva-Toro’s January 2012 motion.
Even if this Court had not already decided the issue, we would nonetheless
hold that there was no abuse of discretion, as Silva-Toro failed to identify any
record evidence in his January 2012 motion that suggested that he was not actively
or personally involved in persecution. To the extent that Silva-Toro challenges the
BIA’s decision not to reconsider his persecutor status sua sponte, we lack
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jurisdiction to consider this factual issue. See Mejia-Hernandez v. Holder, 633
F.3d 818, 823–24 (9th Cir. 2011) (citing Ekimian v. INS, 303 F.3d 1153, 1159 (9th
Cir. 2002)).
Silva-Toro also contends that the BIA erred in denying the challenge to his
persecutor status in his October 2012 motion, which the BIA properly construed as
a motion to reopen proceedings. “A motion to reopen proceedings shall not be
granted unless it appears to the Board that evidence sought to be offered is material
and was not available and could not have been discovered or presented at the
former hearing.” 8 C.F.R. § 1003.2(c)(1); see Ordonez v. INS, 345 F.3d 777, 785
(9th Cir. 2003). The evidence Silva-Toro submitted with his October 2012 motion
indicates that Peruvian law generally requires military service, that there are
penalties for those who leave the military without prior approval, and that conflict
continues between Shining Path members and Peruvian troops.
Aside from the news articles on recent clashes in Peru, which do not speak
to Silva-Toro’s past actions, none of the newly submitted evidence was previously
undiscoverable or could not have been presented at Silva-Toro’s 1993 deportation
hearing. It goes without saying that the laws that governed conscription and that
prescribed punishment for military deserters during Silva-Toro’s time in the
Peruvian armed forces existed at that time and are not newly discoverable. Indeed,
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as Silva-Toro now argues that these laws were the reason for his actions against the
Shining Path, he cannot–and does not–contend that he did not know about them
before his deportation hearing. Thus, the BIA acted within its discretion when it
denied Silva-Toro’s October 2012 motion to reopen. Likewise, to the extent that
Silva-Toro’s October 2012 motion in fact sought reconsideration of the denial of
his January 2012 motion to reconsider, 8 C.F.R. § 1003.2(b)(2) precluded him
from seeking this relief.
It is true that the BIA did not expressly state in its November 2012 decision
that it had determined that Silva-Toro’s newly submitted evidence was not material
or that it could not have been discovered or presented earlier. Accordingly, Silva-
Toro argues that the BIA abused its discretion by denying his motion without
providing a reasoned explanation. This Court has recognized that, although the
BIA must not misstate the record or fail to mention “highly probative or potentially
dispositive evidence,” it need not discuss each piece of evidence that a party
submits. Cole v. Holder, 659 F.3d 762, 771–72 (9th Cir. 2011). As Silva-Toro’s
newly submitted evidence was neither highly probative nor potentially dispositive,
the BIA did not need to discuss it expressly. More to the point, the BIA did in fact
state its reasons for denying Silva-Toro’s motion–chiefly, that “[t]he respondent
essentially reiterates the same claims that [the BIA] considered and rejected in his
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previous motion to reopen.” Given the broad discretion afforded to the BIA and
the nature of Silva-Toro’s “new” evidence, which was plainly not new at all, we
hold that the BIA’s explanation was sufficient and that it did not abuse its
discretion by failing to provide a reasoned explanation.
Next, Silva-Toro maintains that the BIA abused its discretion in March 2012
by denying the portion of his January 2012 motion that sought to reopen
proceedings to allow him to apply for deferral of removal under the Convention
Against Torture (“CAT”). Although a persecutor is ineligible for withholding of
removal under the CAT, such an individual may be eligible for a temporary
deferral of removal upon showing that, “if removed to his native country, it is more
likely than not that he would be tortured by public officials, or by private
individuals with the government’s consent or acquiescence.” Oyeniran v. Holder,
672 F.3d 800, 803 (9th Cir. 2012) (quoting Afridi v. Gonzales, 442 F.3d 1212,
1221 (9th Cir. 2006)); see 8 C.F.R. § 1208.18. The government is deemed to have
acquiesced when “public officials were aware of the torture but ‘remained willfully
blind to it, or simply stood by because of their inability or unwillingness to oppose
it.’” Oyeniran, 672 F.3d at 803 (quoting Bromfield v. Mukasey, 543 F.3d 1071,
1079 (9th Cir. 2008)).
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Although the news articles that Silva-Toro submitted describe ongoing
conflict between the Shining Path and Peruvian troops, they provide little
indication that the Peruvian government is unable or unwilling to stop attacks by
the Shining Path such that the government may be said to be acquiescing in torture.
To the contrary, the articles demonstrate that the Peruvian government continues to
oppose the Shining Path. Cf. Santos-Lemus v. Mukasey, 542 F.3d 738, 748 (9th
Cir. 2008) (denying petition for review based on CAT claim due to insufficient
showing of acquiescence), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1092–94 (9th Cir. 2013). Moreover, these articles, coupled
with Silva-Toro’s statements that he was targeted by the Shining Path prior to
leaving Peru in 1988, do not compel the conclusion that Silva-Toro will more
likely than not be tortured upon returning to Peru. Accordingly, the BIA did not
abuse its discretion in denying Silva-Toro’s motion to reopen under the CAT.
Lastly, Silva-Toro contends that the BIA erred in denying his January 2012
and October 2012 motions as untimely and number-barred. Because we hold that
the BIA acted within its discretion in denying Silva-Toro’s motions on the merits,
we need not address Silva-Toro’s contention that his motions were procedurally
valid. See INS v. Abudu, 485 U.S. 94, 104 (1988) (recognizing that failure to
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establish a prima facie case for underlying substantive relief is an independent
ground upon which the BIA may deny a motion to reopen).
PETITIONS DISMISSED IN PART AND DENIED IN PART.
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