DENCY LEON-POLANCO V. ERIC HOLDER JR., No. 11-73219 (9th Cir. 2014)
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FILED JUN 18 2014 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DENCY MARIEL LEON-POLANCO, Petitioner, No. 11-73219 Agency No. A098-793-593 v. MEMORANDUM* ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted June 12, 2014** Before: McKEOWN, WARDLAW, and M. SMITH, Circuit Judges. Dency Mariel Leon-Polanco, a native and citizen of El Salvador, 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 * 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 ). We have jurisdiction under 8 U.S.C. ยง 1252. We review for substantial evidence the agency s factual findings, Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and we review de novo claims of due process violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part and grant in part the petition for review, and we remand. We reject Leon-Polanco s contention that the IJ adjudicated her case without reviewing the record, in violation of her due process rights. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due process claim). Substantial evidence supports the agency s denial of CAT relief because Leon-Polanco failed to establish it is more likely than not she would be tortured by 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 Leon-Polanco s asylum and withholding of removal claims, the agency found Leon-Polanco failed to establish past persecution or a fear of future persecution on account of a protected ground. When the IJ and BIA issued their decisions in this case they did not have the benefit of either 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, No. 09-73671, 2 11-73219 2014 WL 1797657 (9th Cir. May 7, 2014), or the BIA s decisions in Matter of ME-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 Leon-Polanco s asylum and withholding of removal claims 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 Leon-Polanco s remaining challenges to the agency s denial of her asylum and withholding of removal claims at this time. The parties shall bear their own costs for this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. 3 11-73219
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