FILED
NOT FOR PUBLICATION APR 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE OMAR AYALA, No. 11-72336
Petitioner, Agency No. A094-306-704
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Jose Omar Ayala, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying his applications for cancellation of
removal, withholding of removal, and protection under the Convention Against
*
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).
Torture (“CAT”). 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). We dismiss in part, deny in part, and grant in part
the petition for review, and we remand.
We lack jurisdiction to review the agency’s discretionary determination that
Ayala failed to show the requisite exceptional and extremely unusual hardship to
his qualifying relatives for cancellation of removal. See Martinez-Rosas v.
Gonzales, 424 F.3d 926, 930 (9th Cir. 2005). Ayala’s contention that the agency
failed to weigh relevant hardship factors is not supported by the record and is not a
colorable question of law that would restore our jurisdiction. See Mendez-Castro
v. Mukasey, 552 F.3d 975, 978 (9th Cir. 2009) (“To be colorable in this context, ...
the claim must have some possible validity.” (citation and internal quotation marks
omitted)).
Substantial evidence supports the agency’s denial of CAT relief because
Ayala failed to establish that it is more likely than not he will be tortured at the
instigation of or with the acquiescence of the government if returned to El
Salvador. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
In denying Ayala’s withholding of removal claim, the agency found Ayala
failed to establish past persecution or a fear of future persecution on account of a
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protected ground. When the IJ and BIA issued their decisions in this case, they did
not have the benefit of this court’s decisions in Henriquez-Rivas v. Holder, 707
F.3d 1081 (9th Cir. 2013) (en banc), Cordoba v. Holder, 726 F.3d 1106 (9th Cir.
2013), and Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014), or the BIA’s
decisions in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014), and Matter of
W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Thus, we remand Ayala’s withholding
of removal claim to determine the impact, if any, of these decisions. See INS v.
Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light of this remand, we do
not reach Ayala’s remaining challenges to the agency’s denial of his withholding
of removal claim at this time.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part;
GRANTED in part; REMANDED.
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