                                                                           FILED
                              NOT FOR PUBLICATION                           JUN 09 2011

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




                              FOR THE NINTH CIRCUIT



OSCAR ANTONIO RAMOS-                             No. 08-72103
RODRIGUEZ; CLAUDIA SEGOVIA
RAMOS-RODRIGUEZ,                                 Agency Nos. A098-287-263
                                                             A098-287-264
               Petitioners,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, JR., Attorney General,

               Respondent.



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

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Oscar Antonio Ramos-Rodriguez and Claudia Segovia Ramos-Rodriguez,

natives and citizens of Nicaragua, petition for review of the Board of Immigration

Appeals’ (“BIA”) order rejecting their claims for asylum, withholding of removal,


          *
             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).
and protection under the Convention Against Torture (“CAT”). We have

jurisdiction under 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 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

petitioners failed to establish it is more likely than not they would be tortured if

removed to Nicaragua. See Wakkary, 558 F.3d at 1067-68. Accordingly, their

CAT claims fail.

      Petitioners base their claims for asylum and withholding of removal on

mistreatment by Sandinista members and loyalists. The BIA denied their claims,

finding the mistreatment did not rise to the level of persecution and they did not

establish the government was unable or unwilling to protect them. However, the

BIA did not take into account the petitioners’ ages at the time of the mistreatment.

See Hernandez-Ortiz v. Gonzales, 496 F.3d 1042, 1045-46 (9th Cir. 2007) (error

not to “look at the events from [petitioners’] perspective, nor measure the degree of

their injuries by their impact on children of their ages”). In addition, contrary to

the BIA’s finding petitioners presented “no evidence” the government was unable

to unwilling to protect them, petitioners presented testimony that Esteli was a


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Sandinista city, that the police were Sandinistas, and that it was therefore futile to

report the attacks. See Ornelas-Chavez v. Gonzales, 458 F.3d 1052, 1058 (9th Cir.

2006) (reporting not required where petitioner establishes it “would have been

futile or have subjected him to further abuse”). In light of this conclusion, and the

possibility that a presumption of future persecution applies, see 8 U.S.C.

§§ 1208.13(b)(1), 1208.16(b)(1)(i), we do not reach the BIA’s other findings

regarding petitioners’ fear of future persecution. Accordingly, we grant the

petition for review with respect to petitioners’ asylum and withholding of removal

claims and remand for further proceedings consistent with this disposition. 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 DENIED in part; GRANTED in part;

REMANDED.




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