FILED
NOT FOR PUBLICATION OCT 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FLORINDA ROSARIO-LOPEZ et al., No. 08-74827
Petitioners, Agency Nos. A098-292-076
A098-292-077
v. A098-292-078
ERIC H. HOLDER, Jr., Attorney General,
MEMORANDUM *
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Florinda Rosario-Lopez and her daughters, natives and citizens of
Guatemala, petition pro se for review of a Board of Immigration Appeals’ (“BIA”)
order dismissing their appeal from an immigration judge’s decision denying their
application for asylum, withholding of removal, and relief under the Convention
*
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).
Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We
review de novo questions of law, Hernandez-Montiel v. INS, 225 F.3d 1084, 1090
(9th Cir. 2000), and for substantial evidence factual findings, INS v. Elias-
Zacarias, 502 U.S. 478, 481 & n.1 (1992). We deny in part and grant in part the
petition for review, and we remand.
We lack jurisdiction to consider whether the harm Rosario-Lopez suffered
rises to the level of past persecution because this argument was not presented to the
BIA. See Brezilien v. Holder, 569 F.3d 403, 412 (9th Cir. 2009) (the court lacks
jurisdiction to consider claims not exhausted administratively).
The BIA found Rosario-Lopez failed to establish a well-founded fear of
future persecution on account of a protected ground and rejected her contention
that she and her daughters were members of a particular social group of women in
Guatemala. We recently held that the BIA’s determination that a social group
consisting of all women in Guatemala was not cognizable conflicted with its own
precedent and remanded the case for further proceedings. Perdomo v. Holder, 611
F.3d 662, 669 (9th Cir. 2010). Accordingly, we grant Rosario-Lopez’s petition for
review with respect to her asylum and withholding of removal claims and remand
to the BIA for further proceedings consistent with Perdomo. See INS v. Ventura,
537 U.S. 12, 16-18 (2002) (per curiam).
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Substantial evidence supports the BIA’s denial of CAT relief because
Rosario-Lopez failed to establish it is more likely than not she will be tortured by
or with the acquiescence of the government of Guatemala. See Silaya v. Mukasey,
524 F.3d 1066, 1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED in part. GRANTED in part.
REMANDED.
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