NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE MARTIN AGUILAR GUADAMUZ, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 10-73329 

12-71103 

Agency No. A078-344-769 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted February 5, 2020

San Francisco, California

Before: PAEZ, BEA, and FRIEDLAND, Circuit Judges.

Petitioner-Appellant Jose Aguilar Guadamuz, a native and citizen of 

Nicaragua, petitions for review of decisions by the Board of Immigration Appeals

(“BIA”): (1) affirming an Immigration Judge’s (“IJ”) denial of his petition for 

withholding of removal, and (2) denying Aguilar Guadamuz’s motion to reopen 

proceedings on the basis of ineffective assistance of counsel and changed country 

conditions.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

MAR 25 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

We review the agency’s factual findings as to withholding of removal for

substantial evidence, Gu v. Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006), and the 

BIA’s denial of Aguilar Guadamuz’s motion to reopen, including its determination 

whether the motion was timely filed, for abuse of discretion, Singh v. Gonzales, 

491 F.3d 1090, 1095-97 (9th Cir. 2007). Applying these standards, we deny the 

petition for review with respect to Aguilar Guadamuz’s claim for withholding, but 

grant the petition with respect to his motion to reopen, and we remand for further 

proceedings.

1. Substantial evidence supports the agency’s denial of withholding of 

removal. Even if Aguilar Guadamuz were entitled to a presumption of persecution 

based on his treatment in Nicaragua following the 1979 revolution, substantial 

evidence supports the agency’s determination that, in light of a “fundamental 

change in circumstances” in Nicaragua in the decades since 1979, the Government 

successfully rebutted that presumption. 8 C.F.R. § 1208.16(b)(1)(i)(A).

1

2. The BIA abused its discretion in denying Aguilar Guadamuz’s motion to 

reopen, which asserted that his initial counsel provided ineffective assistance of 

counsel. The BIA’s determination that Aguilar Guadamuz was not prejudiced by 

1 To the extent Aguilar Guadamuz petitions for review of the agency’s 

denial of his claim for relief under the Convention Against Torture, we lack 

jurisdiction to consider that issue because he failed to raise it in his brief to the 

BIA. See 8 U.S.C. § 1252(d)(1); Alvarado v. Holder, 759 F.3d 1121, 1126 n.4, 

1127 (9th Cir. 2014).
3 

his counsel’s failure to introduce evidence that his mother had experienced recent 

threats and harassment in Nicaragua from groups affiliated with the Sandinistas

was “arbitrary, irrational, or contrary to law.” Bhasin v. Gonzales, 423 F.3d 977, 

987 (9th Cir. 2005) (quoting Singh v. INS, 295 F.3d 1037, 1039 (9th Cir. 2002)).

2

 

The BIA stated that there was “no indication” that such testimony “would have 

provided information different from that which [Aguilar Guadamuz] was able to 

offer at his hearing.” But this testimony would have differed materially from the 

evidence of minor and decades-old incidents Aguilar Guadamuz in fact presented, 

and it would have provided the missing nexus between Aguilar Guadamuz’s fear 

of future persecution and his family’s political disagreements with the Sandinistas. 

Counsel’s failure to present such testimony therefore “may have affected the 

outcome of the proceedings.” Correa-Rivera v. Holder, 706 F.3d 1128, 1133 (9th 

Cir. 2013) (quoting Ortiz v. INS, 179 F.3d 1148, 1153 (9th Cir. 1999)).

3

 

PETITION FOR REVIEW DENIED in part, DISMISSED in part, and 

GRANTED in part; REMANDED.

2 Although the BIA expressed skepticism about the letters describing these 

incidents, the accounts were not necessarily inconsistent with one another, and the 

BIA was obligated to accept as true the corresponding allegations in Aguilar 

Guadamuz’s reopening declarations unless they were “inherently unbelievable.” 

Najmabadi v. Holder, 597 F.3d 983, 990 (9th Cir. 2010).

3 Because we conclude that the BIA abused its discretion in this respect, we 

need not address Aguilar Guadamuz’s arguments that he was entitled to reopening 

based on other theories of ineffective assistance of counsel, or that he was entitled 

to reopening based on changed country conditions.