                                                                            FILED
                              NOT FOR PUBLICATION                            FEB 22 2010

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




                               FOR THE NINTH CIRCUIT



 RAFAEL AGUILAR-HUERTA,                            No. 08-73073

                Petitioner,                        Agency No. A097-371-352

    v.
                                                   MEMORANDUM *
 ERIC H. HOLDER Jr., Attorney General,

                Respondent.



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

                              Submitted February 16, 2010 **
                                San Francisco, California

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

         Rafael Aguilar-Huerta, a native and citizen of Mexico, petitions for review

of the Board of Immigration Appeals decision summarily affirming the




           *
             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).

jlf/Inventory
immigration judge’s denial of petitioner’s motion to reopen, seeking to apply for

relief under the Convention Against Torture (“CAT”).

         Aguilar-Huerta’s claim for protection under CAT failed to present evidence

of changed country conditions in Mexico that are material to petitioner and his

circumstances. See 8 C.F.R. § 1003.2(c)(3)(ii); Nuru v. Gonzales, 404 F.3d 1207,

1216 (9th Cir. 2005) (holding that CAT applicant must establish that it is more

likely than not that he would be tortured if removed to his native country).

         Aguilar-Huerta also contends that the IJ violated his due process rights by

not allowing him to present evidence of changed circumstances at an evidentiary

hearing. Because the BIA considered the attached affidavits and the country

conditions information in the motion to reopen, he cannot show a due process

violation. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (holding that

petitioner must demonstrate error and substantial prejudice to prevail on a due

process claim).

         PETITION FOR REVIEW DENIED.




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