                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 16 2011

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




                             FOR THE NINTH CIRCUIT



MOISES DE JESUS LOPEZ-FOLGAR,                    No. 09-70948

               Petitioner,                       Agency No. A027-581-688

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

               Respondent.



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

                             Submitted August 11, 2011 **

Before:        THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.

       Moises de Jesus Lopez-Folgar, a native and citizen of Guatemala, petitions

for review of the Board of Immigration Appeals’ (“BIA”) order denying his

motion to remand, and dismissing his appeal from an immigration judge’s (“IJ”)

decision denying his applications for asylum, withholding of removal, protection


          *
             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).
under the Convention Against Torture (“CAT”), and cancellation of removal. We

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

agency’s factual findings, de novo questions of law, and for abuse of discretion the

BIA’s denial of a motion to remand. Lin v. Ashcroft, 377 F.3d 1014, 1023 (9th Cir.

2004). We deny in part and grant in part the petition for review, and we remand.

      Lopez-Folgar’s contention that the agency could not assume past persecution

and was instead required to make an explicit past persecution finding fails. See

Hanna v. Keisler, 506 F.3d 933, 938 (9th Cir. 2007) (where BIA assumes past

persecution, this court also assumes past persecution and proceeds to determine

whether the government has overcome the rebuttable presumption of a well-

founded fear of persecution). Lopez-Folgar failed to raise any substantive

challenge to the BIA’s dispositive determination that, even if he established past

persecution, any presumption of a well-founded fear of persecution was rebutted

by evidence he could reasonably relocate within Guatemala. See Martinez-Serrano

v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues that are not specifically

raised and argued in a party’s opening brief are waived); see also 8 C.F.R.

§ 1208.13(b)(1)(i)(B) (presumption of well-founded fear is rebutted by evidence a

petitioner can reasonably relocate to another part of his country to avoid future

persecution). Accordingly, Lopez-Folgar’s asylum claim fails.


                                          2                                       09-70948
       Because Lopez-Folgar failed to meet the lower burden of proof for asylum,

his claim for withholding of removal necessarily fails. See Zehatye v. Gonzales,

453 F.3d 1182, 1190 (9th Cir. 2006).

       Lopez-Folgar failed to challenge the denial of his CAT claim in his opening

brief. See Martinez-Serrano, 94 F.3d at 1259-60. Accordingly, his CAT claim

also fails.

       With respect to Lopez-Folgar’s motion to remand, Lopez-Folgar argued to

the BIA that due to his former counsel’s ineffective assistance, evidence material

to his application for cancellation of removal was not submitted to the agency. In

denying the motion to remand, the BIA applied the now-overruled Compean I

standard in assessing whether Lopez-Folgar’s former counsel failed to perform

with sufficient competence. See Matter of Compean, Bangaly & J-E-C- (Compean

II), 25 I & N Dec. 1, 3 (A.G. 2009) (vacating Matter of Compean, Bangaly & J-E-

C- ( Compean I), 24 I & N Dec. 710 (A.G. 2009) and directing the BIA to apply

pre-Compean standards).

       The BIA also applied the wrong legal standard to its prejudice analysis by

requiring Lopez-Folgar to show he would have prevailed if his counsel had

submitted to the immigration court the documentation he had provided to his

counsel. See Maravilla Maravilla v. Holder, 381 F.3d 855, 858 (9th Cir. 2004) (to


                                          3                                   09-70948
show prejudice, petitioner “need not show that [he] would win or lose on any

claims”). We therefore grant the petition with respect to Lopez-Folgar’s motion to

reopen claim and remand to the BIA for assessment under the proper standard. See

Lin, 377 F.3d at 1027 (petitioner is entitled to have counsel perform with

“sufficient competence,” and a petitioner demonstrates prejudice if he shows “‘that

he has plausible grounds for relief’” (citation omitted)). In light of this conclusion,

we do not reach Lopez-Folgar’s cancellation of removal claim.

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

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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