                                                                           FILED
                             NOT FOR PUBLICATION                            APR 30 2010

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




                             FOR THE NINTH CIRCUIT



GONZALO DE JESUS BARCO                            No. 08-74369
GALLO,
                                                  Agency No. A035-983-216
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER Jr., Attorney
General,

               Respondent.



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

                              Submitted April 13, 2010 **
                               San Francisco, California


Before:        KOZINSKI, Chief Judge, NOONAN and CALLAHAN, Circuit
               Judges.

       The BIA did not err by holding that the testimony of Barco-Gallo, even if

believed, did not entitle him to asylum or withholding of removal. Testimony that

          *
             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).
                                                                                 page 2

Barco-Gallo was threatened with persecution because of his last name seventeen

years before the BIA’s decision, when the president of Colombia was also named

Barco, did not establish a well-founded fear of persecution at the time of the

decision, when President Barco was no longer in power.

      Nor has Barco-Gallo shown that the BIA’s consideration of the issue of

asylum for the first time on appeal was “so fundamentally unfair that [he] was

prevented from reasonably presenting his case,” much less that “the outcome of the

proceeding may have been affected.” Ibarra-Flores v. Gonzales, 439 F.3d 614,

620–21 (9th Cir. 2006) (citation and internal quotation marks omitted). Barco-

Gallo had an opportunity to put on evidence of persecution when he presented the

IJ with his claim for withholding of removal, and there’s no reason to think that

Barco-Gallo would have presented more or different evidence of persecution if the

BIA had remanded for the IJ to also consider the evidence under the less

demanding standard applicable to claims for asylum. See, e.g., Pedro-Mateo v.

INS, 224 F.3d 1147, 1150 (9th Cir. 2000).


      DENIED.
