FILED
NOT FOR PUBLICATION AUG 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MOISES DE JESUS LOPEZ-FOLGAR, No. 09-70948
Petitioner, Agency No. A027-581-688
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Moises de Jesus Lopez-Folgar, a native and citizen of Guatemala, petitions
for review of the Board of Immigration Appeals’ (“BIA”) order denying his
motion to remand, and dismissing his appeal from an immigration judge’s (“IJ”)
decision denying his applications for asylum, withholding of removal, protection
*
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).
under the Convention Against Torture (“CAT”), and cancellation of removal. We
have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the
agency’s factual findings, de novo questions of law, and for abuse of discretion the
BIA’s denial of a motion to remand. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.
2004). We deny in part and grant in part the petition for review, and we remand.
Lopez-Folgar’s contention that the agency could not assume past persecution
and was instead required to make an explicit past persecution finding fails. See
Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir. 2007) (where BIA assumes past
persecution, this court also assumes past persecution and proceeds to determine
whether the government has overcome the rebuttable presumption of a well-
founded fear of persecution). Lopez-Folgar failed to raise any substantive
challenge to the BIA’s dispositive determination that, even if he established past
persecution, any presumption of a well-founded fear of persecution was rebutted
by evidence he could reasonably relocate within Guatemala. See Martinez-Serrano
v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues that are not specifically
raised and argued in a party’s opening brief are waived); see also 8 C.F.R.
§ 1208.13(b)(1)(i)(B) (presumption of well-founded fear is rebutted by evidence a
petitioner can reasonably relocate to another part of his country to avoid future
persecution). Accordingly, Lopez-Folgar’s asylum claim fails.
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Because Lopez-Folgar failed to meet the lower burden of proof for asylum,
his claim for withholding of removal necessarily fails. See Zehatye v. Gonzales,
453 F.3d 1182, 1190 (9th Cir. 2006).
Lopez-Folgar failed to challenge the denial of his CAT claim in his opening
brief. See Martinez-Serrano, 94 F.3d at 1259-60. Accordingly, his CAT claim
also fails.
With respect to Lopez-Folgar’s motion to remand, Lopez-Folgar argued to
the BIA that due to his former counsel’s ineffective assistance, evidence material
to his application for cancellation of removal was not submitted to the agency. In
denying the motion to remand, the BIA applied the now-overruled Compean I
standard in assessing whether Lopez-Folgar’s former counsel failed to perform
with sufficient competence. See Matter of Compean, Bangaly & J-E-C- (Compean
II), 25 I & N Dec. 1, 3 (A.G. 2009) (vacating Matter of Compean, Bangaly & J-E-
C- ( Compean I), 24 I & N Dec. 710 (A.G. 2009) and directing the BIA to apply
pre-Compean standards).
The BIA also applied the wrong legal standard to its prejudice analysis by
requiring Lopez-Folgar to show he would have prevailed if his counsel had
submitted to the immigration court the documentation he had provided to his
counsel. See Maravilla Maravilla v. Holder, 381 F.3d 855, 858 (9th Cir. 2004) (to
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show prejudice, petitioner “need not show that [he] would win or lose on any
claims”). We therefore grant the petition with respect to Lopez-Folgar’s motion to
reopen claim and remand to the BIA for assessment under the proper standard. See
Lin, 377 F.3d at 1027 (petitioner is entitled to have counsel perform with
“sufficient competence,” and a petitioner demonstrates prejudice if he shows “‘that
he has plausible grounds for relief’” (citation omitted)). In light of this conclusion,
we do not reach Lopez-Folgar’s cancellation of removal claim.
Each party shall bear its own costs for the petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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