Jose Pastor Escobar-Johnson v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE PASTOR ESCOBAR-JOHNSON,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73204
Agency No. A088-453-772
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Jose Pastor Escobar-Johnson, a native and citizen of Honduras, petitions pro
se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his
appeal from an immigration judge’s decision denying his applications for
cancellation of removal, asylum, withholding of removal, and relief under the
FILED
NOV 24 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).

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Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.
§ 1252. We review for substantial evidence the agency’s factual findings. Ayala v.
Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (per curiam). We review for abuse of
discretion the denial of a motion to remand. Romero-Ruiz v. Mukasey, 538 F.3d
1057, 1062 (9th Cir. 2008). We dismiss in part, deny in part, grant in part, and we
remand.
We lack jurisdiction to consider Escobar-Johnson’s request for prosecutorial
discretion. See Vilchiz-Soto v. Holder, 688 F.3d 642, 644 (9th Cir. 2012) (order).
Escobar-Johnson has not challenged the agency’s determination that he failed to
credibly establish the required continuous physical presence to qualify for
cancellation of removal. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th
Cir. 1996). We do not address Escobar-Johnson’s hardship contentions because
the agency did not reach this issue. See Santiago-Rodriguez v. Holder, 657 F.3d
820, 829 (9th Cir. 2011) (our review is limited to the grounds relied upon by the
agency).
The record does not compel the conclusion that Escobar-Johnson has shown
changed or extraordinary circumstances to excuse the untimely filing of his asylum
application. See 8 C.F.R. § 1208.4(a)(4)-(5). Thus, Escobar-Johnson’s asylum
claim fails.
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The BIA did not abuse its discretion in not remanding based on the
supplemental evidence that Escobar-Johnson submitted with his appeal to the BIA.
See Romero-Ruiz, 538 F.3d at 1062.
In denying Escobar-Johnson’s withholding of removal claims, the agency
found he failed to establish past persecution or a clear probability of future
persecution on account of a protected ground. However, the BIA did not discuss
the impact, if any, of this court’s recent decisions in Henriquez-Rivas v. Holder,
707 F.3d 1081 (9th Cir. 2013) (en banc) and Cordoba v. Holder, 726 F.3d 1106
(9th Cir. 2013). Further, when the IJ and BIA issued their decisions in this case,
they did not have the benefit of this court’s decision in 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 Escobar-Johnson’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).
Finally, the BIA’s determination that Escobar-Johnson was not eligible for
CAT relief, at least in part because the government was not made aware of the
threats against Escobar-Johnson, is not supported by the record. Escobar-
Johnson’s declaration indicates he confidentially reported assaults by the gang to
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the authorities and the gang members found out that he had denounced them.
Thus, we also remand Escobar-Johnson’s CAT claim for further analysis. See id.
Each party shall bear its own costs for this petition for review.
PETITION FOR REVIEW DISMISSED in part; DENIED in part;
GRANTED in part; REMANDED.
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