PABLO SOLARES ELIAS a/k/a Javier Galara Martinez v. MERRICK GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PABLO SOLARES ELIAS
a/k/a Javier Galara Martinez,
Petitioner,
v.
MERRICK GARLAND, Attorney General,
Respondent.
No. 16-72313
Agency No. A205-320-214
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 7, 2022**
Pasadena, California
Before: WARDLAW and HURWITZ, Circuit Judges, and ROSENTHAL,***
District Judge.
* 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 Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
FILED
MAR 10 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Pablo Solares Elias, a native and citizen of Mexico, seeks review of a Board
of Immigration Appeals (“BIA”) order denying his untimely motion to reopen his
removal proceedings. We have jurisdiction under 8 U.S.C. § 1252, Bonilla v. Lynch,
840 F.3d 575, 581 (9th Cir. 2016). “We review the Board’s denial of a motion to
reopen for abuse of discretion, but review purely legal questions de novo.” Id. The
BIA abuses its discretion when its decision is arbitrary, irrational, or contrary to law.
Martinez-Hernandez v. Holder, 778 F.3d 1086, 1088 (9th Cir. 2015). Finding no
abuse of discretion or legal error, we deny the petition for review.
Where, as here, an applicant files a motion to re-open more than 90 days after
the BIA dismisses his original appeal, the applicant needs to “clear four hurdles”:
“(1) he [must] produce evidence that conditions had changed in [his home country];
(2) the evidence [must] be material; (3) the evidence must not have been available
and would not have been discovered or presented at the previous proceeding; and
(4) he [must] demonstrate that the new evidence, when considered together with the
evidence presented at the original hearing, would establish prima facie eligibility for
the relief sought.” Toufighi v. Mukasey, 538 F.3d 988, 996 (9th Cir. 2008), as
amended (citations omitted).
In support of his motion to reopen, Solares submitted his unsworn declaration,
stating that when he told his family that his 2015 BIA appeal was denied, his family
told him that members of the Zetas drug cartel “had been asking about [him].” His

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declaration states that he fears he will be killed when he returns to Mexico if he does
not join the Zetas. Solares’s motion to reopen also included an asylum application,
proof of his military service, a 2015 news article about violence at the southwestern
border, a 2011 law journal article about asylum for former Mexican police officers,
and five photographs.
The BIA did not abuse its discretion in finding that Solares had not
demonstrated changed country conditions based on previously unavailable
information. 8 U.S.C. § 1229a(c)(7); 8 C.F.R. § 1003.2(c)(3). Solares claimed that
he initially left Mexico in 2000 because Zeta members were trying to recruit him
based on his 1989 to 1991 military service and related arms training. He feared
reprisal because his uncle, a military commander, had disappeared years earlier after
he refused to join the Zetas. Solares thus asserted that he was afraid to return to
Mexico in 2016 for the same reason that he left in 2000—he feared reprisal for
refusing to join the Zetas. The 2011 law journal article and the 2015 news article do
not discuss increased violence towards former members of the military in 2015.
“General references to continuing or remaining problems [are] not evidence of a
change in a country’s conditions[.]” Rodriguez v. Garland, 990 F.3d 1205, 1210
(9th Cir. 2021) (citations omitted). “The newly submitted evidence must be
‘qualitatively different’ from the evidence presented at the previous
hearing.” Agonafer v. Sessions, 859 F.3d 1198, 1204 (9th Cir. 2017) (quoting Malty

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v. Ashcroft, 381 F.3d 942, 945 (9th Cir. 2004)). Solares relies on a continuance of
country conditions, not a change.
Additionally, the record does not show that this evidence was unavailable and
could not have been discovered or presented at the 2013 hearing. Solares asserts
that he learned that the Zetas were “still” searching for him when he called his family
to tell them about the BIA’s 2015 decision. He asserts that he had not previously
believed that the Zetas still wanted to recruit him given the 16 years since he left the
country. But Solares’s only evidence of a more recent reason to fear returning is his
own declaration stating that the Zetas had asked his family members about him. His
declaration does not explain when this occurred, and nothing in the record
establishes an inability to obtain this information earlier.
Finally, Solares has not established a prima facie case of eligibility for asylum
or withholding of removal. See Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010).
His only basis for fearing persecution is that his uncle (a military commander) had
been abducted for refusing to join the Zetas—in 1991. Solares remained in Mexico
until 2000 without harm. The evidence does not support his claim that if he returned
to Mexico, he would be persecuted based on a protected ground. Zetino v. Holder,
622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment
by criminals motivated by theft or random violence by gang members bears no nexus
to a protected ground.”).

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Nor does Solares show a basis for CAT relief. He provided no evidence
establishing “substantial grounds” for believing that he would be tortured in Mexico.
Kamalthas v. I.N.S., 251 F.3d 1279, 1284 (9th Cir. 2001) (citations omitted). The
fact that his uncle was a military officer and was kidnapped in 1991, after refusing
to join the Zetas, does not show that it is probable Solares will be tortured with the
acquiescence of Mexican authorities if he returns to Mexico. See Garcia-Milian v.
Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
PETITION DENIED.

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