                                                                           FILED
                            NOT FOR PUBLICATION                             APR 25 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



RODULIO ADONAY PADILLA-                          No. 09-71688
SARMIENTO, AKA Rodulio Padilla
Adonay,                                          Agency No. A096-386-723

              Petitioner,
                                                 MEMORANDUM *
  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                       Argued and Submitted March 16, 2011
                            San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       Rodulio Adonay Padilla-Sarmiento ('Padilla-Sarmiento'), a native and

citizen of Honduras, petitions for review of the Board of Immigration Appeals'

('BIA') order dismissing his appeal from an immigration judge's ('IJ') decision

denying his application for asylum, withholding of removal, and protection under


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the Convention Against Torture ('CAT'). We have jurisdiction under 8 U.S.C. y

1252. We review de novo the BIA's determination of purely legal issues,

Shrestha v. Holder, 590 F.3d 1034, 1048 (9th Cir. 2010), and we review for

substantial evidence the BIA's denial of asylum, withholding of removal, and CAT

relief. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). We grant in part

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

      Padilla-Sarmiento first contends that he has demonstrated past persecution

and a well-founded fear of future persecution on account of his gang membership

in Honduras and his former gang affiliation. He therefore argues that he is eligible

for asylum and withholding of removal. This contention is foreclosed by our

intervening caselaw. See Arteaga v. Muµasey, 511 F.3d 940, 944-46 (9th Cir.

2007) (holding that neither current nor former gang members constitute a particular

social group); see also E-A-G-, 24 I & N Dec. 591, 599 (BIA 2008). Accordingly,

we deny the petition as to the asylum and withholding of removal claims. See

Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009).

      Padilla-Sarmiento also argues that the BIA erroneously excluded the

testimony of Jorge Avila ('Avila'). Specifically, Padilla-Sarmiento contends that

Avila's testimony would have supported his application for asylum, withholding of

removal, and CAT relief. At his hearing, Padilla-Sarmiento attempted to call Avila


                                          2
as a witness. Relying on 8 C.F.R y 1208.6 1, the IJ excluded Avila's testimony

because he failed to provide the court with a written confidentiality waiver after

being advised by his attorney. Padilla-Sarmiento contends that the exclusion of

Avila's testimony violated his due process right to a fair hearing. To the extent

this argument relates to the claims for asylum and withholding of removal, for the

reasons explained above, we agree with the BIA that any such error was harmless.

      Avila's testimony was also relevant to Padilla-Sarmiento's claim for relief

under CAT. The BIA, however, failed to address the exclusion of Avila's

testimony as it related to Padilla-Sarmiento's CAT claim, which does not require a

nexus to a protected ground. 8 C.F.R. y 1208.16(c)(2). Avila's testimony was

liµely probative of whether Padilla-Sarmiento is eligible for CAT relief.

Importantly, according to Padilla-Sarmiento's counsel, Avila would have testified

that, he 'was in the same gang as [] [Padilla-Sarmiento], had the same tattoos, went

bacµ, and was arrested and, severally mistreated by the Honduran police . . . .' AR

240, 273. Although the BIA determined that the exclusion of Avila's testimony



      1
        8 C.F.R. y 1208.6(a) provides:
Information contained in or pertaining to any asylum application, records
pertaining to any credible fear determination conducted pursuant to y 1208.30, and
records pertaining to any reasonable fear determination conducted pursuant to
y 1208.31, shall not be disclosed without the written consent of the applicant,
except as permitted by this section or at the discretion of the Attorney General.

                                          3
was harmless error as it related to the asylum and withholding of removal claims, it

did not maµe a similar ruling with respect to CAT relief. Moreover, the BIA failed

to consider whether, in light of Avila's willingness to waive any right of

confidentiality, the IJ properly invoµed y 1208.6 to exclude Avila's testimony.

Accordingly, we remand Padilla-Sarmiento's CAT claim so that the BIA can

address these issues in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18

(2002) (per curiam) (holding that where issues were not considered by the BIA,

remand is appropriate).

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.

      Each party shall bear its own costs on appeal.




                                          4
                                                                               FILED
Padilla-Sarmiento v. Holder, No. 09-71688                                       APR 25 2011

                                                                           MOLLY C. DWYER, CLERK
BEA, Circuit Judge, concurring in part and dissenting in part:               U.S . CO U RT OF AP PE A LS




          I agree with the majority that Padilla-Sarmiento is not eligible for asylum or

withholding of removal because neither current nor former gang members

constitute a particular social group under our case law. Arteaga v. Muµasey, 511

F.3d 940, 944-46 (9th Cir. 2007). I disagree, however, with the

majority's conclusion that the exclusion of testimony of Jorge Avila ('Avila')

prejudiced Padilla-Sarmiento with respect to his claim for protection under the

Convention Against Torture ('CAT'). Therefore, I dissent.

          First, Padilla-Sarmiento failed to raise the issue whether CAT relief requires

one to be a member of a particular social group before the BIA. Hence, this court

lacµs jurisdiction to consider this contention for the first time on appeal. Sanchez-

Crus v. INS, 255 F.3d 775, 780 (9th Cir. 2001) (failure to exhaust administrative

remedies on an issue prevents this court from exercising judicial review of the

issue).

          Second, even had Padilla-Sarmiento exhausted this issue, he failed to

demonstrate that he was prejudiced by the exclusion of Avila's testimony, such

that remand is necessary. The alien bears the burden of demonstrating that the

challenged proceeding 'was so fundamentally unfair that the alien was prevented


                                             1
from reasonably presenting his case.' Colmenar v. INS, 210 F.3d 967, 971 (9th

Cir. 2000) (internal citation omitted). The alien also bears the burden of

demonstrating prejudice. Id.

      Padilla-Sarmiento presented testimony similar to that proffered as Avila's

from his two cousins, who upon arrival at the airport in Honduras, were arrested by

the police and beaten for their tattoos. AR 192-93; 589-90. In particular, the

Immigration Judge ('IJ') determined that Padilla-Sarmiento was credible and thus

believed his testimony regarding his cousin's arrest and subsequent beating.

Avila's testimony that he was also stripped and arrested by the police at the airport,

for his gang tattoos, would be cumulative and would not substantially add anything

new to the hearing.1

      Additionally, contrary to the testimony of Padilla-Sarmiento's cousins and

Avila's proffered testimony, the country condition report which Padilla-Sarmiento

himself submitted, stated that the Honduran authorities have taµen action to

investigate and prosecute anyone suspected of torturing individuals who are



      1
         The IJ specifically stated that she would give Avila's testimony only
'limited weight' if she did allow him to testify because she agreed with the
government attorney that the record already contained a country condition report
and the fact that 'one person went bacµ to Honduras, was arrested, was beaten, and
then [was] released and returned to the United States cannot be determinative in
this case.' AR 275.

                                          2
perceived to be gang members. ER 391. The IJ focused on this point in her

opinion and stated that given the country condition report, Padilla-Sarmiento did

not demonstrate that 'the government consents or acquiesces in the murder or

torture of gang members.' AR 47.

      Finally, Padilla-Sarmiento himself admitted to the IJ that if he chooses not to

wear baggy clothes, grows out his hair, and his remaining tattoos are covered, he

would liµely not be noticed by the Honduran police. AR 302. Hence, even with

Avila's testimony, Padilla-Sarmiento would not be able to prove that he faces a

chance greater than fifty percent that he will be tortured at the hands of the

government if removed. Hamoui v. Ashcroft, 389 F.3d 821, 827 (9th Cir. 2004). I

would thus deny the petition for review.

      I therefore respectfully dissent.




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