                              NOT FOR PUBLICATION                         FILED
                    UNITED STATES COURT OF APPEALS                        APR 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

JOSE SANTOS AYALA-MOLINA, AKA                   No.    17-70890
Rene Pena,
                                                Agency No. A095-442-670
                Petitioner,

 v.                                             MEMORANDUM*

WILLIAM P. BARR, Attorney General,

                Respondent.

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

                               Submitted April 7, 2020**

Before:      TASHIMA, BYBEE, and WATFORD, Circuit Judges.

      Jose Santos Ayala-Molina, a native and citizen of El Salvador, petitions for

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

from an immigration judge’s (“IJ”) decision denying his application for

withholding of removal and relief under the Convention Against Torture (“CAT”).



      *
             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).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo questions of law,

Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008). 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.

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

Ayala-Molina 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); see also Garcia-Milian v.

Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (concluding that petitioner did not

establish the necessary “state action” for CAT relief).

      As to withholding of removal, the BIA determined that Ayala-Molina failed

to establish past harm rising to the level of persecution. In doing so, the BIA erred

by failing to address Ayala-Molina’s claim that while in El Salvador Ayala-Molina

received threats. See Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005)

(“[T]he BIA [is] not free to ignore arguments raised by a petitioner.”). The BIA

also erred by making factual findings in the first instance regarding Ayala-

Molina’s past persecution claim. See Rodriguez v. Holder, 683 F.3d 1164, 1174

(9th Cir. 2012) (“If the BIA wanted specific factual findings on these issues, then

the governing regulations required it to remand the case to the IJ instead of making


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its own factual determinations.”); see also Vitug v. Holder, 723 F.3d 1056, 1063-64

(9th Cir.2013) (BIA erred in making factual findings about past events in the first

instance). Thus, we grant the petition for review and remand Ayala-Molina’s

withholding of removal claim to the agency for further proceedings consistent with

this disposition. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam).

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

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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