FLORES AKA v. SESSIONS III (2018)

MEMORANDUM **

Santos Estela Flores, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ order dismissing her appeal from an immigration judge’s decision denying her application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review in part, grant in part, and we remand.

In her opening brief, Flores does not challenge the agency’s dispositive determination that her asylum application was untimely. See Corro-Barragan v. Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in waiver). Thus, we deny the petition as to Flores’s asylum claim.

Substantial evidence supports the agency’s denial of CAT relief because Flores failed to show it is more likely than not that she will be tortured by or with the consent or acquiescence of the government of El Salvador. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).

As to withholding of removal, this court’s decision in Barajas-Romero v. Lynch, 846 F.3d 351, 356-60 (9th Cir. 2017), came down after the BIA’s decision. Thus, we grant the petition for review as to withholding of removal, and remand this claim to the BIA to determine the impact, if any, of this decision. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

Each party shall bear its own costs for this petition for review.

PETITION FOR REVIEW DENIED in part; GRANTED in part; REMANDED.