                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 13 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



SIVANHEUANG KHAMMANY,                            No. 06-73333

               Petitioner,                       Agency No. A023-836-715

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

               Respondent.



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

                             Submitted August 8, 2012 **

Before:        ALARCÓN, BERZON, and IKUTA, Circuit Judges.

       Sivanheuang Khammany, a native and citizen of Laos, petitions for review

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

immigration judge’s removal order. We have jurisdiction under 8 U.S.C. § 1252.

We review for substantial evidence the agency’s factual findings, and review de


          *
             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).
novo questions of law. Bromfield v. Mukasey, 543 F.3d 1071, 1076 (9th Cir.

2008). We deny in part and grant in part the petition for review, and remand for

further proceedings.

       Substantial evidence supports the BIA’s determination that Khammany has

not established it is more likely than not he will face future persecution if returned

to Laos. See Nahrvani v. Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005)

(upholding the denial of withholding of removal where the possibility of future

persecution was speculative). Accordingly, Khammany’s withholding of removal

claim fails.

       Substantial evidence also supports the BIA’s denial of relief under the

Convention Against Torture because Khammany failed to establish that it is more

likely than not he will be tortured by or with the acquiescence of the government of

Laos. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

       In concluding that Khammany was ineligible for a waiver of inadmissibility

under former § 212(c) of the Immigration and Nationality Act, the agency did not

have the benefit of Peng v. Holder, 673 F.3d 1248, 1256-57 (9th Cir. 2012), in

which we held that § 212(c) relief remains available to certain aliens who

proceeded to trial prior to the passage of the Illegal Immigration Reform and

Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, or Vartelas v. Holder,


                                           2                                     06-73333
566 U.S. ––––, 132 S.Ct. 1479 (2012), in which the Supreme Court discussed the

role of a reliance inquiry when the antiretroactivity principle is invoked.

      In light of this intervening caselaw, we remand to the BIA to determine

Khammany’s eligibility for § 212(c) relief.

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

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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