FILED
NOT FOR PUBLICATION
AUG 10 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MANUEL EDGARDO MUNOZ No. 14-73158
MUNOZ, AKA Manuel Munoz,
Agency No. A077-101-476
Petitioner,
v. MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2018**
Pasadena, California
Before: HAWKINS and CHRISTEN, Circuit Judges, and HOYT,*** 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 Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
Petitioner Manuel Edgardo Munoz Munoz (“Munoz”), a citizen of El Salvador,
appeals the Board of Immigration Appeals (“BIA”) denial of his application for
asylum, withholding of removal, and protection under the Convention Against Torture
(“CAT”).
The immigration judge (“IJ”) and BIA denied Munoz’s claim for asylum
because he failed to meet the one-year deadline for filing an application. 8 U.S.C. §
1158(a)(2)(B). Substantial evidence supports the conclusion that Munoz did not
satisfy his burden to establish either changed or extraordinary circumstances that
would qualify for an exception to the deadline. 8 U.S.C. § 1158 (a)(2)(D). Although
Munoz was diagnosed with AIDS in 1998, he did not submit his asylum application
until 2013. While Munoz claims severe depression hindered his ability to timely file
his application, he submitted no evidence to support this claim. Munoz was thus
statutorily ineligible for asylum, but remained eligible for withholding or CAT
protection.
As part of his claim for relief, Munoz contends he was sexually abused by
family members and an adult male neighbor because he was effeminate and perceived
to be gay or bisexual. He did not report this abuse to the authorities, which led the IJ
and BIA to conclude Munoz had not shown he was persecuted by a group the
government was unable or unwilling to control, citing Castro-Martinez v. Holder, 674
2
F.3d 1073 (9th Cir. 2011). However, Castro-Martinez was overruled by this court in
Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1056 (9th Cir. 2017)(en banc). We
therefore grant the petition with respect to Munoz’s withholding claim so that the
agency can, in the first instance, apply this court’s newly enunciated law to determine
whether Munoz has demonstrated past persecution on this ground. Because neither
party had the benefit of our precedent at the time of the original hearing, we remand
on an open record.1
RELIEF DENIED in part, GRANTED in part, and REMANDED in part
for proceedings consistent with this disposition. Each party shall bear their own
costs on appeal.
1
We also remand Munoz’s CAT claims in the event that additional evidence
adduced on remand may have an additional impact on those claims.
3