Elmer Ricardo Salazar Vail 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NOT FOR PUBLICATION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
ELMER RICARDO SALAZAR VAIL,
Petitioner,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 05-75628
Agency No. A079-537-653
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 14, 2010**
Before: GOODWIN, WALLACE, and THOMAS, Circuit Judges.
Elmer Ricardo Salazar Vail, a native and citizen of Guatemala, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order summarily
affirming an immigration judge’s (“IJ”) decision denying his application for
asylum and withholding of removal, and affirming the IJ’s decision denying his
FILED
DEC 27 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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motion to reopen. We have jurisdiction under 8 U.S.C. 1252. We review for
substantial evidence factual findings, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85
(9th Cir. 2006), and we review for abuse of discretion the denial of a motion to
reopen, Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004). We review de novo
claims of due process violations in removal proceedings. Vasquez-Zavala v.
Ashcroft, 324 F.3d 1105, 1107 (9th Cir. 2003). We deny the petition for review.
Substantial evidence supports the IJ’s determination that the police
harassment Vail suffered while a student did not establish past persecution or a
well-founded fear of future persecution on account of a protected ground. See INS
v. Elias-Zacarias, 502 U.S. 478, 481-84 (1992). Accordingly, Vail’s asylum and
withholding of removal claims fail. See Barrios v. Holder, 581 F.3d 849, 855-56
(9th Cir. 2009).
The agency did not abuse its discretion by denying Vail’s motion to reopen
because Vail failed to demonstrate the evidence he submitted was previously
unavailable. See 8 C.F.R. § 1003.2(c)(1).
Vail’s contention that the agency violated due process by failing to consider
the entirety of the evidence he submitted fails, because he has not overcome the
presumption that the agency did review the record. See Fernandez v. Gonzales,
439 F.3d 592, 603 (9th Cir. 2006). Because the agency did not abuse its discretion

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05-75628 3
in denying the motion to reopen, denial of an evidentiary hearing did not violate
due process. See 8 U.S.C. § 1229a(c)(7) (stating that motion to reopen shall state
the new facts that will be proved at a hearing to be held if the motion is granted,
and shall be supported by affidavits or other evidentiary material); see also Lata v.
INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error to prevail on a due
process claim).
Finally, Vail’s contention that the BIA violated due process by affirming the
IJ’s decision without opinion is foreclosed by Falcon Carriche v. Ashcroft, 350
F.3d 845, 848 (9th Cir. 2003) (BIA’s summary affirmance procedure does not
violate due process).
PETITION FOR REVIEW DENIED.

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