NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO CALEL-GOMEZ; MARIA Nos. 14-71272
ESTELA HERNANDEZ DE CALEL, 14-73649
Petitioners, Agency Nos. A071-590-089
A088-487-404
v.
WILLIAM P. BARR, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 19, 2019**
Before: FERNANDEZ, SILVERMAN, and WATFORD, Circuit Judges.
In these consolidated petitions, Pedro Calel-Gomez and Maria Estela
Hernandez de Calel, natives and citizens of Guatemala, petition for review of the
Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an
immigration judge’s decision denying their applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
removal, and relief under the Convention Against Torture (“CAT”) (petition No.
14-71272) and of the BIA’s order denying their motion to reopen removal
proceedings (petition No. 14-73649). We have jurisdiction under 8 U.S.C. § 1252.
We review for substantial evidence the agency’s factual findings and review for
abuse of discretion the BIA’s denial of a motion to reopen. Najmabadi v. Holder,
597 F.3d 983, 986 (9th Cir. 2010). We deny the petitions for review.
As to petition No. 14-71272, even considering petitioners’ status as
indigenous persons and Hernandez de Calel’s proposed particular social group,
substantial evidence supports the agency’s determination that petitioners failed to
establish a well-founded fear of future persecution on account of a protected
ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (even if
membership in a particular social group is established, an applicant must still show
that “persecution was or will be on account of his membership in such group”
(emphasis in original)); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir.
2010) (applicant’s “desire to be free from harassment by criminals motivated by
theft or random violence by gang members bears no nexus to a protected ground”).
Thus, petitioners’ asylum and withholding of removal claims fail.
Substantial evidence also supports the agency’s denial of CAT relief because
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petitioners failed to establish that it is more likely than not they would be tortured
by or with the consent or acquiescence of the Guatemalan government. See
Alphonsus v. Holder, 705 F.3d 1031, 1049 (9th Cir. 2013) (despite “troubling
country reports,” evidence did not compel the conclusion that it was more likely
than not that petitioner would be tortured upon return), abrogated on other grounds
by Guerrero v. Whitaker, 908 F.3d 541 (9th Cir. 2018).
We reject petitioners’ contention that the BIA failed to address adequately
their evidence or to explain its decision. See Najmabadi, 597 F.3d at 990 (the BIA
“does not have to write an exegesis on every contention”). We also reject
petitioners’ contention that the BIA applied the wrong legal standard to their
asylum claims.
As to petition No. 14-73649, the BIA did not abuse its discretion in denying
the motion to reopen where petitioners failed to present previously unavailable and
material evidence. See 8 C.F.R. § 1003.2(c); see also Najmabadi, 597 F.3d at 987-
990 (evidence must be “qualitatively different” to warrant reopening).
PETITIONS FOR REVIEW DENIED.
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