NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 15 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE DE JESUS GONZALEZ- No. 17-72780 ALVARADO, AKA Ruben Ayon Cruz, 18-70854 AKA Apollinaire Jimenez, Agency No. A097-764-811 Petitioner, v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 4, 2019 Seattle, Washington Before: GOULD and NGUYEN, Circuit Judges, and R. COLLINS,** District Judge. Jose de Jesus Gonzalez-Alvarado, a native and citizen of Mexico, petitions for review of decisions by the Board of Immigration Appeals (“BIA”) dismissing his appeal from an immigration judge’s (“IJ”) denial of deferred removal under the * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Raner C. Collins, United States District Judge for the District of Arizona, sitting by designation. Convention Against Torture (“CAT”) and denying his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252. See Agonafer v. Sessions, 859 F.3d 1198, 1202–03 (9th Cir. 2017). We review the BIA’s legal determinations de novo, its factual findings for substantial evidence, and its denial of a motion to reopen for abuse of discretion. See Salim v. Lynch, 831 F.3d 1133, 1137 (9th Cir. 2016). We deny the petition as to the denial of the motion to reopen, grant the petition as to the denial of deferred removal under the CAT, and remand for further proceedings. 1. In his motion to reopen, Gonzalez-Alvarado presented no new evidence to undermine the agency’s finding that he failed to show a likelihood of government acquiescence in torture. A motion to reopen “is purely fact-based, seeking to present newly discovered facts or changed circumstances since a petitioner’s hearing,” and “is not a means by which the BIA can correct its own legal error.” Doissaint v. Mukasey, 538 F.3d 1167, 1170 (9th Cir. 2008). While the BIA can construe a motion to reopen as a motion for reconsideration, see Mohammed v. Gonzales, 400 F.3d 785, 793 (9th Cir. 2005), Gonzalez-Alvarado did not address government acquiescence. Because the agency’s finding regarding acquiescence was an independent basis to deny CAT relief, the BIA did not abuse its discretion in denying the motion to reopen. See INS v. Abudu, 485 U.S. 94, 104 (1988) (explaining that “the BIA may deny a motion to reopen” if “the movant has not established a prima facie case for the underlying substantive relief sought”). 2 2. In affirming the IJ’s denial of deferred removal under the CAT, the BIA largely adopted the IJ’s decision.1 In particular, the BIA found that the IJ did not clearly err in making three findings that are independent grounds to deny relief: (a) there is insufficient corroboration that Gonzalez-Alvarado’s “feared persecutor,” Chuy, “is a high-ranking . . . member” of the Cartel Jalisco New Generation (“CJNG”) who “remains affiliated with the cartel with the power and influence to direct ...
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