FILED
NOT FOR PUBLICATION AUG 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LUIS EMIRO BARRIOS MENDOZA; et No. 08-74394
al.,
Agency Nos. A096-351-672
Petitioners, A096-351-673
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 2, 2011 **
Before: LEAVY, IKUTA, and N.R. SMITH, Circuit Judges.
Luis Emiro Barrios Mendoza and his wife, natives and citizens of Colombia,
petition pro se for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
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”), and denying their motion to remand. We
have jurisdiction under 8 U.S.C. § 1252. We review for abuse of discretion the
denial of a motion to remand, review de novo questions of law, and review for
substantial evidence factual findings. Romero-Ruiz v. Mukasey, 538 F.3d 1057,
1061-62 (9th Cir. 2008). We deny the petition for review.
Substantial evidence supports the agency’s determination that petitioners
failed to establish that guerrillas have harmed or will harm Barrios Mendoza on
account of an imputed political opinion. See INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992) (“[t]o reverse the BIA finding we must find that the evidence not
only supports that conclusion, but compels it”) (emphasis in original); Sangha v.
INS, 103 F.3d 1482, 1488-91 (9th Cir. 1997). Accordingly, we deny the petition as
to petitioners’ asylum and withholding of removal claims.
Substantial evidence supports the agency’s denial of CAT relief because
petitioners did not establish a likelihood of torture by, at the instigation of, or with
the consent or acquiescence of a public official or other person acting in an official
capacity if returned to Colombia. See Arteaga v. Mukasey, 511 F.3d 940, 948-49
(9th Cir. 2007).
We reject petitioners’ contention that the IJ did not consider the evidence,
because they have not overcome the presumption the agency reviewed the record.
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See Larita-Martinez v. INS, 220 F.3d 1092, 1095-96 (9th Cir. 2000). We also
reject petitioners’ contention that they were denied due process based on
indiscernible and missing words in the transcript because petitioners have not
demonstrated how this affected the outcome of their proceedings. See Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a
due process claim).
Finally, the BIA did not abuse its discretion in denying petitioners’ motion
to remand based on ineffective assistance of counsel, because petitioners failed to
demonstrate they were prejudiced by the conduct of their former attorneys. See id.;
see also Blanco v. Mukasey, 518 F.3d 714, 722 (9th Cir. 2008) (no prejudice from
counsel’s failure to call a witness because additional testimony likely would not
have changed the outcome); Ortiz v. INS, 179 F.3d 1148, 1153-54 (9th Cir. 1999)
(attorney’s failure to elicit testimony regarding petitioner’s asylum claim was
insufficient to establish prejudice).
PETITION FOR REVIEW DENIED.
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