Fidel Quinonez-Hernandez v. Loretta E. Lynch

MEMORANDUM **

An Immigration Judge (“IJ”) denied Fidel Quinonez-Hernandez’s applications for asylum, withholding of removal, special rule cancellation of removal under the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), protection under the Convention Against Torture (“CAT”), and voluntary departure. Petitioner appealed to the Board of Immigration Appeals (“BIA”), and the BIA dismissed the appeal. Petitioner seeks review of the BIA decision. For the reasons stated below, we grant in part the petition for review, deny it in part, and remand for further proceedings.

I.

Because the BIA expressed agreement with the reasoning of the IJ, this court reviews both the IJ’s and the BIA’s decisions. Kumar v. Holder, 728 F.3d 993, 998 (9th Cir. 2013) (citing Nuru v. Gonzales, 404 F.3d 1207, 1215 (9th Cir. 2005)). This court reviews legal questions de novo, and it reviews the agency’s factual findings for substantial evidence. Id. (citing Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006)). “[W]e must decide whether to grant or deny the petition for review based on the Board’s reasoning rather than our own independent analysis of the record.” Azanor v. Ashcroft,…

dissenting:

I respectfully dissent.

The evidence supports the agency’s finding that the petitioner was a member of the Flechas unit of the Guatemalan military at the time when—and at the place where—the Flechas committed horrendous genocidal acts. The finding that petitioner was a member of the Flechas, which consisted of only 200 men, when and where the massacres occurred, is specific and nothing like a generalized finding that someone was “in the army during World War II” or the like. The Flechas were a small group, and the dates and locations of petitioner’s whereabouts were detailed and coincided with the genocidal acts that those few men committed. Thus, the IJ did not err in ruling that, given this evidence, the burden shifted to petitioner to show that he did not participate in persecution.

Of course, that’s not the end of the ball game. It is possible that petitioner had an innocent explanation for these seemingly incriminating facts. However, when petitioner himself took the stand and testified to his lack of personal involvement in the massacres, he testified untruthfully—as the IJ found, as the BIA affirmed, and as the majority apparently recognizes; the majority…

FILED

NOT FOR PUBLICATION

AUG 31 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FIDEL QUINONEZ-HERNANDEZ, No. 13-71304

Petitioner, Agency No. A072-399-794

v.

MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

Respondent.

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

Submitted December 10, 2015** San Francisco, California

Before: O’SCANNLAIN, SILVERMAN, and BEA, Circuit Judges.

An Immigration Judge (“IJ”) denied Fidel Quinonez-Hernandez’s

applications for asylum, withholding of removal, special rule cancellation of

removal under the Nicaraguan Adjustment and Central American Relief Act

(“NACARA”), protection under the Convention Against Torture (“CAT”), and

* 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). voluntary departure. Petitioner appealed to the Board of Immigration Appeals

(“BIA”), and the BIA dismissed the appeal.…