                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               JUN 11 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RONALD FRANK AQUINO-MEJICO,                      No.   18-71410

              Petitioner,                        Agency No. A088-933-500

 v.
                                                 MEMORANDUM*
WILLIAM P. BARR, Attorney General,

              Respondent.


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

                             Submitted May 11, 2020**
                                 Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CARDONE,*** District
Judge.

      Petitioner Ronald Aquino-Mejico, a native and citizen of Peru, petitions for

review of the Board of Immigration Appeals’ (BIA) decision (1) affirming the

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
Immigration Judge’s (IJ) denial of Aquino’s application for withholding of

removal (withholding), and (2) denying Aquino’s motion to reopen proceedings.

Because the parties are familiar with the facts, we will not recite them here. We

have jurisdiction under 8 U.S.C. § 1252. We deny the petition for review.

      “Where, as here, the BIA agrees with the IJ decision and also adds its own

reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.

2019) (citation omitted). We review denials of withholding “for substantial

evidence and will uphold a denial supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Ling Huang v. Holder,

744 F.3d 1149, 1152 (9th Cir. 2014) (internal quotation marks omitted). A denial

of a motion to reopen is reviewed for abuse of discretion and may only be reversed

if it is “arbitrary, irrational, or contrary to law.” Bonilla v. Lynch, 840 F.3d 575,

581 (9th Cir. 2016) (internal quotation marks omitted).

1.    To qualify for withholding, a petitioner must show that “it is more likely

than not that the petitioner would be subject to persecution on account of [a]

protected ground[]” if removed to his country of origin. Tamang v. Holder, 598

F.3d 1083, 1091 (9th Cir. 2010) (internal quotation marks omitted). A petitioner

can carry this burden in two ways. First, he can show that he suffered actual past


                                            2
persecution on account of a protected ground, which leads to a rebuttable

presumption that he will suffer persecution if returned to his country of origin. See

Lolong v. Gonzales, 484 F.3d 1173, 1178 (9th Cir. 2007) (en banc); see also 8

C.F.R. § 208.13(b)(1). Second, he can show that he has a well-founded fear of

future persecution that “is both subjectively genuine and objectively reasonable.”

Lolong, 484 F.3d at 1178. Further, to sustain a claim for withholding, a petitioner

must show that his alleged persecutor is “a government official or individuals the

government is unable or unwilling to control.” Santos-Lemus v. Mukasey, 542

F.3d 738, 742 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v.

Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

      Here, the BIA concluded that (1) Aquino did not experience past persecution

and (2) Aquino does not have an objectively reasonable fear of future persecution

by either a government official or an entity the government is unwilling or unable

to control. Both conclusions are supported by substantial evidence. Aquino was

only personally threatened by Shining Path members on one occasion, and he was

never physically harmed. This alone is insufficient to constitute past persecution.

See Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (holding that

unfulfilled threats of violence “constitute harassment rather than persecution”).

And though Aquino alleges that Shining Path will seek to harm him if he returns to


                                          3
Peru, he has not shown that the Peruvian government is unwilling or unable to

control that group. Thus, substantial evidence supports the denial of Aquino’s

claim for withholding.

2.    The BIA may reopen removal proceedings if the petitioner presents new

evidence that “is material and was not available and could not have been

discovered or presented at the former hearing.” 8 C.F.R. § 1003.2(c)(1). To

sustain a motion to reopen, the evidence must raise “a prima facie case for the

relief sought.” Najmabadi v. Holder, 597 F.3d 983, 986 (9th Cir. 2010) (quoting

I.N.S. v. Doherty, 502 U.S. 314, 323 (1992)).

      Here, the BIA concluded that the evidence does not amount to a prima facie

case for relief. Substantial evidence supports this conclusion. If anything, the new

country condition evidence demonstrates that Shining Path presents a lesser threat

than it did previously. And the evidence of recent violence against Aquino’s father

does not negate the BIA’s previous finding that the Peruvian government would be

willing and able to protect Aquino from harm.

      Alternatively, substantial evidence supports the BIA’s finding that the new

evidence could have been discovered and presented at a prior hearing. Aquino

learned that Shining Path assaulted his father in September 2016. And many of the

country conditions reports he offers were published in 2014, 2015, and 2016.


                                          4
Thus, this evidence was available to Aquino at the time of his January 2017

hearing before the IJ. And despite Aquino’s arguments to the contrary, because the

BIA did not explicitly qualify or limit the January 2017 hearing to a specific

purpose, Aquino was entitled to bring the new evidence to the IJ’s attention at that

hearing. See Matter of Patel, 16 I. & N. Dec. 600, 601 (B.I.A. 1978).

      Thus, the BIA did not abuse its discretion in denying Aquino’s motion to

reopen.

      PETITION DENIED.




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