CHICAS CLAROS v. BARR (2020)

MEMORANDUM **

Kevin Adonay Chicas Claros, a native and citizen of El Salvador, petitions pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge's decision denying his 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 in part and grant in part the petition for review, and we remand.

Chicas Claros’ request to remand and terminate proceedings for lack of jurisdiction is foreclosed by Aguilar Fermin v. Barr, 958 F.3d 887, 894-95 (9th Cir. 2020) (notice to appear need not include time, date, or place of initial hearing to vest jurisdiction in the immigration court).

The agency found that Chicas Claros failed to establish past harm rising to the level of persecution. Substantial evidence does not support that determination. See Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th Cir. 2002) (threats coupled with close confrontation by armed men rose to the level of persecution). Thus, we grant the petition for review as to Chicas Claros’ asylum and withholding of removal claims, and remand to the agency for further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (per curiam).

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

Chicas Claros’ removal is stayed pending a decision by the BIA.

The government must bear the costs for this petition for review.

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