Horta Garcia v. Gonzales

FILED

NOT FOR PUBLICATION AUG 14 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

VICTOR HUGO HORTA GARCIA, No. 06-75548

Petitioner, Agency No. A070-962-853

v.

MEMORANDUM *

ERIC H. HOLDER, JR., Attorney General,

Respondent.

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

Submitted August 8, 2012 **

Before: ALARCÓN, BERZON, and IKUTA, Circuit Judges.

Victor Hugo Horta Garcia, 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. We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual

* 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). findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny the

petition for…

concurring:

I concur on the ground that Horta Garcia did not raise before the Board of Immigration Appeals (“BIA”) the primary issue he now raises — that his and his family’s professed neutrality in the Guatemalan civil unrest in the 1980s constitutes an imputed political opinion for purposes of the nexus requirement. His brief to the BIA asserted only persecution on account of “his familial relationship.”

MEMORANDUM **

Victor Hugo Horta Garcia, 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. We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir.2009). We deny the petition for review.

Horta Garcia contends the agency erred in finding he did not establish past persecution based on an imputed political opinion. Substantial evidence supports the agency’s determination that Horta Garcia failed to establish the harm he and his family suffered was on account of a protected ground. See INS v. Elias-Zacari-as, 502 U.S. 478, 483 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992) (petitioner must provide some evidence, direct or circumstantial, of persecutor’s motive). In light of this conclusion, we need not address Horta Garcia’s contention that the agency erred in *135 considering only the threats he received in Guatemala. Further, Horta Garcia’s reliance on the presumption of future persecution fails because he did not establish past persecution, see…