Carlos Martinez Dominguez v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 06 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CARLOS ALBERTO MARTINEZ No. 10-71023
DOMINGUEZ,
Agency No. A072-130-553
Petitioner,

v. MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 26, 2012 **

Before: SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

Carlos Alberto Martinez Dominguez, a native and citizen of Guatemala,

petitions for review of the Board of Immigration Appeals’ order dismissing his

appeal from an immigration judge’s decision denying his application for asylum,

*
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).
withholding of removal, and protection under the Convention Against Torture

(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings and review de novo its legal

conclusions. Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008). We

deny in part and grant in part the petition for review, and we remand.

Substantial evidence supports the agency’s denial of CAT relief because

Martinez Dominguez failed to establish it is more likely than not he will be

tortured if returned to Guatemala. See Santos-Lemus, 542 F.3d at 747-48.

With respect to his asylum and withholding of removal claims, Martinez

Dominguez claims he will be persecuted, in part, on his willingness to testify to

war crimes in Guatemala. Substantial evidence supports the agency’s conclusion

that Martinez Dominguez failed to establish a well-founded fear of future

persecution on the basis that he would be willing to testify to war crimes because

Martinez Dominguez has not been asked to be a witness, he does not know of any

war crimes tribunals addressing circumstances that occurred in his area, and he

does not know anyone who has been asked to testify. See Nagoulko v. INS, 333

F.3d 1012, 1018 (9th Cir. 2003) (possibility of future persecution too speculative).

Additionally, we lack jurisdiction to consider Martinez Dominguez’ argument that

10-71023
he is a member of a disfavored group because petitioner did not raise this claim to

the agency. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Martinez Dominguez also claims he suffered past persecution through the

harm his family experienced. In rejecting this claim, the BIA concluded, in part,

that Martinez Dominguez failed to establish his grandfather was targeted on

account of a protected ground. Through his declaration and testimony, however,

Martinez Dominguez indicated that the Guatemalan government kidnapped and

tortured his grandfather on suspicion of harboring guerillas. Substantial evidence

does not support the BIA’s finding, because the evidence shows that Martinez

Dominguez’ grandfather was targeted, at least in part, on account of his imputed

political opinion. See Ratnam v. INS, 154 F.3d 990, 995 (9th Cir. 1998) (in the

absence of evidence of a legitimate prosecutorial purpose for a government’s

harassment of a person, a presumption arises that the motive for harassment is

political).

Accordingly, we remand for the BIA to assess Martinez Dominguez’ asylum

and withholding of removal claims in light of this disposition. See INS v. Ventura,

537 U.S. 12, 16-18 (2002) (per curiam).

Each party shall bear its own costs for this petition for review.

10-71023
 PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.

10-71023