BYRON ESPANA-OCHOA V. ERIC HOLDER, JR., No. 10-73844 (9th Cir. 2015)

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FILED APR 16 2015 NOT FOR PUBLICATION MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BYRON F. ESPANA-OCHOA and WILLIAN Y. ESPANA-OCHOA, AKA William Y. Espana-Ochoa, No. 10-73844 Agency Nos. A095-308-787 A097-873-061 Petitioners, MEMORANDUM* v. ERIC H. HOLDER, Jr., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 7, 2015** Before: FISHER, TALLMAN, and NGUYEN, Circuit Judges. Byron F. Espana-Ochoa and Willian Y. Espana-Ochoa, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an immigration judge’s (“IJ”) decision denying * 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). their applications for asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 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 deny in part and grant in part the petition for review, and we remand. Substantial evidence supports the agency’s denial of CAT relief because petitioners failed to show it is more likely than not they would be tortured by the Guatemalan government, or with its consent or acquiescence. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). Thus, petitioners’ CAT claims fail. In denying petitioners’ asylum and withholding of removal claims, the agency found petitioners 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 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 petitioners’ asylum and withholding of removal claims to determine the 2 10-73844 impact, if any, of these decisions. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. 3 10-73844

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