MARIA MORALES-ESPANA V. LORETTA E. LYNCH, No. 11-70720 (9th Cir. 2015)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS JUL 28 2015 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT MARIA JOSE MORALES-ESPANA, Petitioner, No. 11-70720 Agency No. A095-717-514 v. MEMORANDUM* LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted July 21, 2015** Before: CANBY, BEA, and MURGUIA, Circuit Judge. Maria Jose Morales-Espana, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal from an immigration judge’s (“IJ”) decision denying her application for asylum, withholding of removal, and protection under the Convention Against Torture * 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). (“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review de novo questions of law and review for substantial evidence the agency’s factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part, dismiss in part, and grant in part the petition for review, and we remand. The record does not compel the conclusion that Morales-Espana established changed or extraordinary circumstances to excuse the delay in filing her asylum application. See 8 C.F.R. § 1208.4(a), (5); see also Husyev v. Mukasey, 528 F.3d 1172 ,1181-82 (9th Cir. 2008). Thus, we deny the petition for review with respect to asylum. We lack jurisdiction to consider Morales-Espana’s contentions regarding CAT relief because she did not appeal the IJ’s denial of her CAT claim to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Thus, we dismiss the petition as to Morales-Espana’s CAT claim. In denying withholding of removal, however, the BIA found MoralesEspana failed to establish past persecution or a fear of future persecution on account of a protected ground. When the BIA issued its decision in this case, it 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 2 11-70720 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 Morales-Espana’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 Morales-Espana’s remaining challenges to the agency’s denial of her withholding of removal claim. Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW DENIED in part; DISMISSED in part; GRANTED in part; REMANDED. 3 11-70720
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