Maynor Zuniga-Ortega v. Loretta E. Lynch , 604 F. App'x 608 ( 2015 )

FILED
NOT FOR PUBLICATION MAY 21 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAYNOR DE JESUS ZUNIGA- No. 11-72500
ORTEGA,
Agency No. A200-757-125
Petitioner,
v. MEMORANDUM*
LORETTA E. LYNCH, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Maynor de Jesus Zuniga-Ortega, a native and citizen of Guatemala, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his 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. § 1252. We review de
novo questions of law and 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.
We decline to consider the new evidence Zuniga-Ortega references in his
reply brief because our review is limited to the administrative record underlying
the agency’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en
banc).
The record does not compel the conclusion that Zuniga-Ortega established
changed or extraordinary circumstances excusing the late filing of his application
for asylum. See 8 C.F.R. §§ 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d
646, 656-58 (9th Cir. 2007) (per curiam).
Substantial evidence supports the agency’s denial of CAT relief because
Zuniga-Ortega failed to establish it is more likely than not he would be tortured at
the instigation of or with the acquiescence of the government if returned to
Guatemala. See Silaya, 524 F.3d at 1073. We reject Zuniga-Ortega’s contention
that the agency’s consideration of his CAT claim was deficient.
In denying Zuniga-Ortega’s withholding of removal claim, however, the
agency found Zuniga-Ortega’s claim did not implicate a protected ground. When
2 11-72500
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 Zuniga-Ortega’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 Zuniga-
Ortega’s remaining challenges to the agency’s denial of his withholding of removal
claim at this time.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
3 11-72500