Jose Cabrera-Gonzalez v. Eric Holder, Jr. , 532 F. App'x 777 ( 2013 )

FILED
NOT FOR PUBLICATION JUL 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE EVERARDO CABRERA- No. 10-73426
GONZALEZ,
Agency No. A027-146-701
Petitioner,
v. MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 29, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
Jose Everardo Cabrera-Gonzalez (“Cabrera”), a native and citizen of El
Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s (“IJ”) decision denying his
application for withholding of removal and protection under the Convention
*
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).
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a), and we
deny the petition for review.1
Cabrera argues that he is eligible for asylum. An alien whose prior
deportation order has been reinstated is ineligible for asylum relief. See Ixcot v.
Holder, 646 F.3d 1202, 1207 (9th Cir. 2011); 8 U.S.C. § 1231(a)(5).
Reinstatement of a prior order of deportation “requires proof that 1) petitioner is an
alien, 2) who was subject to a prior removal order, and 3) who illegally reentered
the United States.” Morales-Izquierdo v. Gonzales, 486 F.3d 484, 495 (9th Cir.
2007).
Cabrera admits in his opening brief that he is an alien who was subject to a
prior removal order and that he illegally reentered the United States. Therefore, he
is ineligible for asylum relief. See id at 494; Ixcot, 646 F.3d at 1207.
Although the reinstatement of Cabrera’s prior order of removal disqualifies
him for relief under asylum, he is not precluded from seeking withholding of
removal and protection under CAT. See Ixcot, 646 F.3d at 1207 & n. 10.
Under the Real ID Act, corroboration may be required, even if the alien is
found credible, where his testimony is not persuasive and specific. Aden v. Holder,
1
Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.
2
589 F.3d 1040, 1044-45 (9th Cir. 2009). The decision of the IJ and the BIA that
the petitioner should have been able to obtain corroborative evidence may not be
reversed unless “a reasonable trier of fact is compelled to conclude that such
corroborating evidence is unavailable.” Shrestha v. Holder, 590 F.3d 1034, 1047
(9th Cir. 2010) (quoting 8 U.S.C. § 1252(b)(4)).
Here, substantial evidence supports the BIA’s denial of withholding of
removal based on Cabrera’s failure to provide corroboration. See Aden, 589 F.3d
at 1045. Moreover, a reasonable trier of fact would not be compelled to conclude
that corroborating evidence was unavailable. See Shrestha, 590 F.3d at 1048.
Cabrera argues that the BIA erred by refusing to grant his motion to remand.
A denial of a motion to remand is reviewed for abuse of discretion. Castillo-Perez
v. INS, 212 F.3d 518, 523 (9th Cir. 2000). “The formal requirements of the motion
to reopen and those of the motion to remand are for all practical purposes the
same.” Rodriguez v. INS, 841 F.2d 865, 867 (9th Cir. 1987). “A motion to reopen
is based on factual grounds, and seeks a fresh determination based on newly
discovered evidence or a change in the applicant’s circumstances since the time of
the hearing.” Romero-Ruiz v. Mukasey, 538 F.3d 1057, 1063 (9th Cir. 2008). The
petitioner’s evidence must not have been available and could not have been
presented at the former hearing. Id. at 1063-64.
3
Cabrera’s newly submitted evidence was available at the initial hearing in
front of the IJ. Therefore, the BIA did not abuse its discretion in denying
Cabrera’s motion to remand. See Najmabadi v. Holder, 597 F.3d 983, 986 (9th
Cir. 2010).
Cabrera claims that the IJ erred by denying his claim for relief under CAT.
To qualify for protection under CAT, an alien has the burden of proving that it is
more likely than not that he would be tortured by or with the acquiescence of a
public official in the proposed country of removal. Go v. Holder, 640 F.3d 1047,
1053 (9th Cir. 2011).
The record does not compel the conclusion that Cabrera met his burden of
proof for relief under CAT. See Ren v. Holder, 648 F.3d 1079, 1094 (9th Cir.
2011) (where petitioner’s credible testimony was insufficient to establish eligibility
for asylum and withholding of removal absent corroborating evidence, his CAT
claim likewise failed).
Cabrera contends, for the first time on appeal, that the IJ violated his due
process rights by failing to assist him in developing his case. This court lacks
jurisdiction to consider Cabrera’s due process claim because he failed to raise this
instance of mere procedural error before the BIA. See Barron v. Ashcroft, 358
F.3d 674, 678 (9th Cir. 2004).
4
PETITION DENIED.
5