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NOT FOR PUBLICATION JUL 06 2012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