Nestor Santiago Mallari v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NESTOR SANTIAGO MALLARI,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-73670
Agency No. A086-924-473
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 20, 2016**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
Nestor Santiago Mallari, a native and citizen of the Philippines, petitions for
review of the Board of Immigration Appeals’ order dismissing his appeal from an
immigration judge’s (“IJ”) decision denying him asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). Our jurisdiction is
FILED
JAN 26 2016
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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governed by 8 U.S.C. § 1252. We review de novo questions of law and for
substantial evidence factual findings. Tamang v. Holder, 598 F.3d 1083, 1088 (9th
Cir. 2010). We dismiss in part and deny in part the petition for review.
The agency found that Mallari did not establish changed or extraordinary
circumstances to excuse the untimely filing of his asylum application. We lack
jurisdiction to review this finding because the underlying facts are disputed. See
Gasparyan v. Holder, 707 F.3d 1130, 1134 (9th Cir. 2013). Thus, we dismiss the
petition as to Mallari’s asylum claim.
Substantial evidence supports the agency’s determination that Mallari failed
to establish that the New People’s Army would be motivated to harm him on
account of a protected ground. See INS v. Elias-Zacarias, 502 U.S. 478, 483
(1992); see also Ayala v. Holder, 640 F.3d 1095, 1098 (9th Cir. 2011)
(mistreatment motivated by retribution does not bear a nexus to a protected
ground). Thus, his withholding of removal claim fails.
Finally, substantial evidence supports the agency’s denial of Mallari’s CAT
claim because he failed to establish that it is more likely than not that he would be
tortured by or at the instigation of or with the consent or acquiescence of the
government if returned to the Philippines. See Santos-Lemus v. Mukasey, 542 F.3d
13-73670 2

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738, 747-48 (9th Cir. 2008), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).
PETITION FOR REVIEW DISMISSED in part and DENIED in part.
13-73670 3

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