                                                                           FILED
                               NOT FOR PUBLICATION                          JAN 02 2014

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                               FOR THE NINTH CIRCUIT


JOSE HUMBERTO CUADRA; MARIA                       No. 12-70898
MARGARITA CUADRA,
                                                  Agency Nos. A094-176-009
               Petitioners,                                   A099-068-098

  v.
                                                  MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                              Submitted December 17, 2013**

Before:        GOODWIN, WALLACE, and GRABER, Circuit Judges.

       Jose Humberto Cuadra, a native and citizen of El Salvador, and Maria

Margarita Cuadra, a native and citizen of Honduras, petition pro se for review of

the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an

immigration judge’s (“IJ”) decision denying Jose Cuadra’s applications for

          *
             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).
asylum, withholding of removal, protection under the Convention Against Torture

(“CAT”), and cancellation of removal under the Nicaraguan Adjustment and

Central American Relief Act (“NACARA”). Our jurisdiction is governed by

8 U.S.C. § 1252. We review de novo questions of law and for substantial evidence

factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We

dismiss in part, deny in part, and grant in part the petition for review, and we

remand.

      We lack jurisdiction to review Cuadra’s challenge to the discretionary denial

of his NACARA claim and dismiss this claim. See Martinez-Rosas v. Gonzales,

424 F.3d 926, 930 (9th Cir. 2005).

      Cuadra’s testimony and declaration described three guerrilla encounters he

experienced as a minor, including the last in which guerrillas beat him and his

father, who later died as a result, and also described subsequent threats from

guerrillas. The IJ accepted Cuadra’s testimony as credible and found he had three

encounters, but concluded that the record did “not compel” a finding of past

persecution. In analyzing Cuadra’s claim, the BIA expressly considered only two

of the encounters and agreed with the IJ’s analysis. Neither the IJ nor the BIA

addressed the harm to Cuadra’s father.




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      Substantial evidence supports the agency’s denial of CAT relief because

Cuadra failed to establish it is more likely than not he would be tortured by or with

the acquiescence of the government if returned to El Salvador. See Silaya v.

Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

      However, the agency erred in using the “compel” standard to deny Cuadra’s

asylum and withholding of removal claims. See generally Nagoulko v. INS, 333

F.3d 1012, 1015, 1018 (9th Cir. 2003) (the court, not the agency, reviews the

record to determine whether the evidence compels a finding of past persecution).

Further, it does not appear the agency considered the full extent of the harm

Cuadra described, including the harm to his father and other information in his

declaration about the encounters. See Hernandez-Ortiz v. Gonzales, 496 F.3d

1042, 1044-46 (9th Cir. 2007) (agency must consider injuries to family where

petitioner perceived events forming basis of past persecution claim as a child);

Korablina v. INS, 158 F.3d 1038, 1044 (9th Cir. 1998) (“[t]he key question is

whether, looking at the cumulative effect of all the incidents a petitioner has

suffered, the treatment [he] received rises to the level of persecution”). In light of

our conclusions regarding past persecution and the possibility of a presumption of

future fear, we do not address the agency’s finding that Cuadra failed to establish a

well-founded fear of future persecution. See 8 C.F.R. §§ 1208.13(b)(1),


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1208.16(b)(1)(i) (both stating an applicant found to have established past

persecution is entitled to a rebuttable presumption of future persecution). Thus, we

grant the petition as to Cuadra’s asylum and withholding of removal claims and

remand these claims to the BIA. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam).

      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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