Garces v. Holder , 362 F. App'x 767 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 20 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ELCY CRISTINA GARCES, No. 07-71453
Petitioner, Agency No. A095-881-142
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
Elcy Christina Garces, a native and citizen of Colombia, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an
immigration judge’s decision denying her application for asylum, withholding of
*
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).
KAD/Research
removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review the BIA’s decision for substantial
evidence, Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir. 2000), we review the
denial of a motion to reopen for abuse of discretion, Ordonez v. INS, 345 F.3d 777,
782 (9th Cir. 2003), and we review due process claims de novo, Fernandez v.
Gonzales, 439 F.3d 592, 603 (9th Cir. 2006). We deny the petition for review.
Substantial evidence supports the BIA’s conclusion that Garces failed to
demonstrate a nexus to a protected ground, because she testified she was targeted
primarily on account of her family’s perceived wealth, and Garces merely
speculates that the guerillas were motivated by her political or imputed political
opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 482-83 (1992). Therefore, her
asylum and withholding of removal claims fail.
Substantial evidence supports the denial of CAT protection because Garces
failed to demonstrate that it is more likely than not that she will be tortured upon
return to Colombia. See El Himri v. Ashcroft, 378 F.3d 932, 938 (9th Cir. 2004).
The BIA did not abuse its discretion in denying both Garces’ motion to
reopen and her request to hold her case in abeyance, because the BIA considered
the evidence she submitted and acted within its broad discretion in determining that
the evidence was insufficient to warrant either reopening or holding in abeyance.
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See Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002) (The BIA’s denial of a
motion to reopen shall be reversed only if it is “arbitrary, irrational or contrary to
law.”). Accordingly, Garces’ contention that the BIA’s decision violated due
process fails as well. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000)
(requiring error for a due process violation).
PETITION FOR REVIEW DENIED.
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