                                                                             FILED
                           NOT FOR PUBLICATION
                                                                             AUG 10 2018
                    UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


MANUEL EDGARDO MUNOZ                            No.    14-73158
MUNOZ, AKA Manuel Munoz,
                                                Agency No. A077-101-476
             Petitioner,

 v.                                             MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

             Respondent.


                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                            Submitted August 7, 2018**
                               Pasadena, California

Before: HAWKINS and CHRISTEN, Circuit Judges, and HOYT,*** District
Judge.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Kenneth M. Hoyt, United States District Judge for the
Southern District of Texas, sitting by designation.
      Petitioner Manuel Edgardo Munoz Munoz (“Munoz”), a citizen of El Salvador,

appeals the Board of Immigration Appeals (“BIA”) denial of his application for

asylum, withholding of removal, and protection under the Convention Against Torture

(“CAT”).

      The immigration judge (“IJ”) and BIA denied Munoz’s claim for asylum

because he failed to meet the one-year deadline for filing an application. 8 U.S.C. §

1158(a)(2)(B). Substantial evidence supports the conclusion that Munoz did not

satisfy his burden to establish either changed or extraordinary circumstances that

would qualify for an exception to the deadline. 8 U.S.C. § 1158 (a)(2)(D). Although

Munoz was diagnosed with AIDS in 1998, he did not submit his asylum application

until 2013. While Munoz claims severe depression hindered his ability to timely file

his application, he submitted no evidence to support this claim. Munoz was thus

statutorily ineligible for asylum, but remained eligible for withholding or CAT

protection.

         As part of his claim for relief, Munoz contends he was sexually abused by

family members and an adult male neighbor because he was effeminate and perceived

to be gay or bisexual. He did not report this abuse to the authorities, which led the IJ

and BIA to conclude Munoz had not shown he was persecuted by a group the

government was unable or unwilling to control, citing Castro-Martinez v. Holder, 674


                                           2
F.3d 1073 (9th Cir. 2011). However, Castro-Martinez was overruled by this court in

Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1056 (9th Cir. 2017)(en banc). We

therefore grant the petition with respect to Munoz’s withholding claim so that the

agency can, in the first instance, apply this court’s newly enunciated law to determine

whether Munoz has demonstrated past persecution on this ground. Because neither

party had the benefit of our precedent at the time of the original hearing, we remand

on an open record.1

      RELIEF DENIED in part, GRANTED in part, and REMANDED in part

for proceedings consistent with this disposition. Each party shall bear their own

costs on appeal.




      1
       We also remand Munoz’s CAT claims in the event that additional evidence
adduced on remand may have an additional impact on those claims.
                                          3
