Mauricio Giraldo v. Eric H. Holder Jr. , 424 F. App'x 713 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 28 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MAURICIO GIRALDO RIOS, No. 08-71592
Petitioner, Agency No. A099-053-075
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 8, 2011 **
Before: FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges,
Mauricio Giraldo Rios, a native and citizen of Colombia, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to
remand and dismissing his appeal from the immigration judge’s decision denying
his application for asylum, withholding of removal, and protection under the
*
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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.
§ 1252. We review for substantial evidence the agency’s factual findings and
review its legal conclusions de novo. Santos-Lemus v. Mukasey, 542 F.3d 738,
742 (9th Cir. 2008). The court reviews a denial of a motion to remand for abuse of
discretion. de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir. 2007).
We deny the petition for review.
Substantial evidence supports the agency’s finding that the two death threats
Giraldo Rios received did not rise to the level of persecution. See Lim v. INS, 224
F.3d 929, 936 (9th Cir. 2000) (citation and internal quotations omitted) (“Threats
standing alone...constitute past persecution in only a small category of cases, and
only when the threats are so menacing as to cause significant actual suffering or
harm.”). Substantial evidence also supports the agency’s finding that Giraldo Rios
failed to establish the government was unwilling or unable to protect him. See
Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005). Accordingly,
Giraldo Rios’ asylum claim fails.
Because Giraldo Rios failed to establish his eligibility for asylum, he
necessarily failed to meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
08-71592
Substantial evidence also supports the agency’s denial of CAT relief because
Giraldo Rios failed to establish it is more likely than not he will be tortured by or
with the acquiescence of a government official if returned to Colombia. See
Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).
In addition, we reject Giraldo Rios’contention that the BIA violated his due
process by ignoring, discounting, or misconstruing his testimony. See Lata v.
I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2006) (requiring error and prejudice to
prevail on due process claim).
Finally, the BIA did not abuse its discretion in denying Giraldo Rios’ motion
to remand because the evidence Giraldo Rios submitted was not material in light of
his inability to establish the government was unwilling or unable to protect him.
See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (internal citation
omitted) (“Aliens who seek to remand or reopen proceedings to pursue relief bear a
‘heavy burden’ of proving that, if proceedings were reopened, the new evidence
would likely change the result in the case.”).
PETITION FOR REVIEW DENIED.
08-71592