Wilmer Eduardo Rodriguez v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILMER EDUARDO RODRIGUEZ,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 12-73666
Agency No. A099-832-209
MEMORANDUM*
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.
Wilmer Eduardo Rodriguez, a native and citizen of El Salvador, petitions 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 Torture
FILED
MAY 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

-- 1 of 3 --

(“CAT”). We have jurisdiction under 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 finding that Rodriguez established changed
or extraordinary circumstances to excuse his untimely asylum application. See
8 C.F.R. § 1208.4(a)(4), (5); see also Toj-Culpatan v. Holder, 612 F.3d 1088,
1091-92 (9th Cir. 2010). Thus, we deny the petition for review as to Rodriguez’s
asylum claim.
Substantial evidence supports the agency’s denial of Rodriguez’s CAT claim
because he failed to establish it is more likely than not he would be tortured by or
with the consent or acquiescence of the government if returned to El Salvador. See
Silaya, 524 F.3d at 1073.
In denying Rodriguez’s withholding of removal claim, the agency found he
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
12-73666 2

-- 2 of 3 --

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 Rodriguez’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 Rodriguez’s due process claim.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
12-73666 3

-- 3 of 3 --