                                                                              FILED
                            NOT FOR PUBLICATION                                SEP 27 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JULIO ANTONIO IZQUIERDO,                         No. 06-74629

              Petitioner,                        Agency No. A073-989-314

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

              Respondent.


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

                     Argued and Submitted September 9, 2013
                            San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and BATTAGLIA, District
Judge.**

       Julio Antonio Izquierdo, a native and citizen of Peru, petitions for review

from the Immigration Judge’s (“IJ”) issuance of a final order of removal, following

the Board of Immigration Appeals’s (“BIA”) reversal of the IJ’s original grant of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Anthony J. Battaglia, United States District Judge for
the Southern District of California, sitting by designation.
asylum and adjustment of status relief. Although the government challenges the

petition as untimely because Petitioner did not seek review of the BIA’s remand

order, Petitioner was not required to do so under the then existing law of this

circuit. See Molina-Camacho v. Ashcroft, 393 F.3d 937, 942 (9th Cir. 2004).

      The matter is before us after a panel of this court originally granted

Petitioner’s petition for rehearing. In that petition and the supplemental briefing

this court requested, Petitioner contends that the BIA engaged in inappropriate

fact-finding when it overturned the IJ’s grant of relief. See 8 C.F.R.

§ 1003.1(d)(3)(i). The record does not bear this out.

      Petitioner was a member of Peru’s National Guard at the time of a prison

riot by prisoners who were members of the “Shining Path.” Many of the rioters

were led out and executed by prison officials. He sought asylum, claiming fear of

Shining Path persecution. Before the IJ, the government contended that he was

barred from relief by having been a persecutor himself. See 8 U.S.C.

§ 1158(b)(2)(A)(i). The IJ rejected the government’s position and granted asylum

and adjustment of status.

      On the government’s appeal the BIA reversed the grant of relief, holding

that the petitioner had no well-founded fear of future persecution from the Shining




                                          2
Path, and that his background, including some criminal brushes with the law in this

country, rendered adjustment of status inappropriate.

      There is substantial evidence supporting the BIA decision. The BIA’s

analysis contains no facts that are inconsistent with the facts found by the

immigration judge, so we must reject Petitioner’s claim that the BIA engaged in

improper fact-finding. In the absence of any violation of the applicable

regulations, we lack jurisdiction to review the BIA’s discretionary determination

denying adjustment of status. With respect to asylum, the evidence in the record

does not compel a finding that the petitioner has a well-founded fear of persecution

from the Shining Path stemming from this episode that occurred in 1986.

      Petitioner also seeks review of the BIA’s denial of petitioner’s subsequent

motion to reopen. There was no abuse of discretion. The motion did not contain

any new material bearing on hardship or indicating that petitioner would be

targeted by the Shining Path.

      The petition for review is DENIED.




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