FILED
NOT FOR PUBLICATION
MAY 13 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSUE DANIEL LARA-SOTO, Nos. 13-72075
Nos. 13-74023
Petitioner,
Agency No. A095-797-258
v.
LORETTA E. LYNCH, Attorney MEMORANDUM*
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 3, 2016
Pasadena, California
Before: KOZINSKI, W. FLETCHER and GOULD, Circuit Judges.
1. Substantial evidence supports the BIA’s determination that Lara-Soto is
unlikely to be persecuted if he returns to Guatemala. Pagayon v. Holder, 675 F.3d
1182, 1190 (9th Cir. 2011). Lara-Soto testified that the police apprehended and
arrested individuals who tried to kill him. The record therefore does not compel
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
the conclusion that the government was “unable or unwilling to control private
persecutors.” Afriyie v. Holder, 613 F.3d 924, 936 (9th Cir. 2010). And any
proclaimed fear of persecution on the basis of family membership was undermined
by Lara-Soto’s testimony that his parents and child live in Guatemala.
Accordingly, Lara-Soto is not entitled to withholding of removal.
2. The BIA didn’t abuse its discretion by denying Lara-Soto’s motion to
reopen and reconsider. Lara-Soto didn’t establish any error of law or fact based on
the existing record that would justify reconsideration. Iturribarria v. INS, 321 F.3d
889, 895 (9th Cir. 2003). And the BIA properly declined to reopen proceedings
because Lara-Soto didn’t show prejudice from his counsel’s failures to contact
Lara-Soto’s cousin and provide evidence of Oscar Cabrera’s notoriety. See Singh
v. Holder, 658 F.3d 879, 885 (9th Cir. 2011) (“When considering the merits of a
motion to reopen premised on ineffective assistance of counsel, the BIA asks
whether counsel’s performance was deficient, and whether the alien suffered
prejudice.”). Lara-Soto’s cousin had told him that she wouldn’t testify on his
behalf. And neither her testimony nor the proffered evidence about Cabrera would
have shown that Lara-Soto would more likely than not suffer persecution.
PETITION DENIED.