                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 31 2013

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




                             FOR THE NINTH CIRCUIT



ISRAEL LOPEZ-SIMON,                              No. 11-72594

               Petitioner,                       Agency No. A087-451-159

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

               Respondent.



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

                             Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Israel Lopez-Simon, a native and citizen of Mexico, petitions pro se 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 relief under the Convention Against Torture (“CAT”),


          *
             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).
and also petitions for review of the BIA’s order dismissing his appeal from an IJ’s

decision denying his motion to reopen his removal proceedings. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings.

Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008). We review for an

abuse of discretion the BIA’s denial of a motion to reopen, and review de novo

claims of due process violations, including claims of ineffective assistance of

counsel. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny

in part and grant in part the petition for review, and we remand.

      Substantial evidence supports the BIA’s denial of CAT relief because

Lopez-Simon failed to establish that it is more likely than not he will be tortured by

or with the acquiescence of the government of Mexico. See Santos-Lemus, 542

F.3d at 748.

      However, in denying asylum and withholding of removal, the BIA

concluded government informants could not be a particular social group under our

decision in Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009). In light of our

recent decision in Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093-94 (9th Cir.

2013) (en banc), we remand this issue to the agency to reassess whether Lopez-

Simon has established that he fears harm on account of a protected ground.




                                          2                                       11-72594
      The BIA did not abuse its discretion in denying Lopez-Simon’s motion to

reopen as untimely where it was filed more than a year after the final order of

removal, see 8 U.S.C. § 1229a(c)(7)(C)(i), and Lopez-Simon did not prejudice

resulting from the alleged ineffective assistance of counsel, see Iturribarria v. INS,

321 F.3d 889, 899-90 (9th Cir. 2003) (the attorney’s performance must have

“affected the outcome of the proceedings”). Lopez-Simon’s contention that the

BIA’s failure to grant his request for a transcript of the prior proceedings violated

his due process rights fails for the same reason. See Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (petitioner must show error and prejudice to establish a due

process violation).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DENIED in part; GRANTED in part.

REMANDED.




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