FILED
NOT FOR PUBLICATION
APR 12 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUCAS MARTIN-CALMO, No. 13-74046
Petitioner, Agency No. A088-737-877
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 9, 2018**
Seattle, Washington
Before: HAWKINS, TASHIMA, and GRABER, Circuit Judges.
Lucas Martin-Calmo, a native and citizen of Guatemala, petitions for review
of the Board of Immigration Appeals’ ("BIA") order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
removal, and protection under the Convention Against Torture ("CAT").1 We deny
the petition in part, grant the petition in part, and remand to the BIA.
1. Substantial evidence supports the BIA’s denial of Petitioner’s CAT
claim. Petitioner failed to show that it was more likely than not that he would be
tortured by or with the acquiescence of the Guatemalan government. Silaya v.
Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). We thus deny the petition insofar
as it pertains to the CAT claim.
2. As to Petitioner’s claim for withholding of removal, the BIA made two
errors. First, the BIA used an incorrect legal standard. The "one central reason"
test does not apply to claims for withholding of removal. Barajas-Romero v.
Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). Second, the BIA mischaracterized
Petitioner’s testimony about why he feared returning to Guatemala. Petitioner
claimed that he was mocked and threatened because of his ethnicity—not that he
feared gang violence or criminals. We thus grant the petition insofar as it pertains
to the withholding claim.
Petition DENIED in part, GRANTED in part, and REMANDED. The
parties shall bear their own costs on appeal.
1
Petitioner does not challenge the denial of his asylum claim.
2