                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 14 2010

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




                             FOR THE NINTH CIRCUIT



MIGUEL ANGEL REYES SANTOS,                       Nos. 07-71510
                                                      07-73439
               Petitioner,
                                                 Agency No. A072-691-537
  v.

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

               Respondent.



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

                             Submitted May 25, 2010 **

Before:        CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

       In these consolidated cases, Miguel Angel Reyes Santos, a native and citizen

of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)

order dismissing his appeal from an immigration judge’s (“IJ”) decision denying



          *
             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).
his application for asylum, withholding of removal, and relief under the

Convention Against Torture (“CAT”) in petition No. 07-71510, and the BIA’s

order denying his motion to reopen in petition No. 07-73439. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s

factual findings, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and

for abuse of discretion the denial of a motion to reopen, Bhasin v. Gonzales, 423

F.3d 977, 983 (9th Cir. 2005). We deny in part and dismiss in part the petition for

review in No. 07-71510. We grant the petition in No. 07-73439 and remand.

      With respect to petition No. 07-71510, substantial evidence supports the

BIA’s finding that Reyes Santos’ fear of criminal gang activity in Guatemala does

not establish eligibility for asylum. See Gormley v. Ashcroft, 364 F.3d 1172, 1177

(9th Cir. 2004). We lack jurisdiction to consider Reyes Santos’ contention that the

IJ impermissibly relied on the absence of past persecution to conclude he did not

establish a well-founded fear or a clear probability of future persecution because he

failed to raise the issue before the BIA. See Barron v. Ashcroft, 358 F.3d 674,

677-78 (9th Cir. 2004). In addition, Reyes Santos failed to exhaust his contentions

that he is a member of a particular social group comprised of ex-civil patrol

members or Guatemalans likely to be victims of criminal gangs. See id.




                                          2                            07-71510/07-73439
      Because Reyes Santos failed to establish eligibility for asylum, it necessarily

follows that he failed to meet the more stringent standard for withholding of

removal. See Zehatye, 453 F.3d at 1190.

      Substantial evidence also supports the agency’s denial of CAT relief because

Reyes Santos did not show it is more likely than not he will be tortured by or with

the acquiescence of government officials if returned to Guatemala. See Wakkary v.

Holder, 558 F.3d 1049, 1067-68 (9th Cir. 2009).

      With respect to petition No. 07-73439, the BIA abused its discretion in

denying Reyes Santos’ motion to reopen because the BIA required corroboration to

establish prima facie eligibility for relief. See Bhasin, 423 F.3d at 986-87

(corroboration not required for motion to reopen where petitioner was found

credible and supporting affidavit was not “inherently unbelievable”). Accordingly,

we grant the petition for review in No. 07-73439, and remand for further

proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-

18 (2002) (per curiam).

      The parties shall each bear their own costs on appeal.

      No. 07-71510: PETITION FOR REVIEW DENIED in part;

DISMISSED in part.

      No. 07-73439: PETITION FOR REVIEW GRANTED; REMANDED.


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