JOSE MARTINEZ-ARGUETA V. LORETTA E. LYNCH, No. 13-72810 (9th Cir. 2015)
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FILED DEC 14 2015 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JOSE MARTINEZ-ARGUETA, Petitioner, No. 13-72810 Agency No. A094-457-716 v. MEMORANDUM* LORETTA E. LYNCH, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 9, 2015** Before: WALLACE, RAWLINSON, and IKUTA, Circuit Judges. Jose Martinez-Argueta, a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his 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”). We have jurisdiction pursuant to 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). We deny in part and grant in part the petition for review, and we remand. The record does not compel the conclusion that Martinez-Argueta applied for asylum within a reasonable time period after the termination of his temporary protected status. See Husyev v. Mukasey, 528 F.3d 1172, 1181 (9th Cir. 2008) (364-day delay in filing asylum application after non-immigrant status expired was not a reasonable period of time). Thus, his asylum claim fails. Further, substantial evidence supports the agency’s denial of MartinezArgueta’s CAT claim because he did not establish it is more likely than not that he would be tortured by, at the instigation of, or with the consent or acquiescence of the El Salvadoran government. See Silaya, 524 F.3d at 1073. In denying withholding of removal for lack of nexus to a protected ground, the BIA did not address the social group argument in Martinez-Argueta’s 2012 brief, and we have no agency decision to review on that claim. We therefore grant the petition as to withholding of removal, and remand for the agency to address the social group argument in the first instance. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). 2 13-72810 Each party shall bear its own costs for this petition for review. PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED. 3 13-72810
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