                                                                           FILED
                             NOT FOR PUBLICATION                           AUG 19 2014

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



                             FOR THE NINTH CIRCUIT


CARLOS ANTONIO HERRERA-                          Nos. 11-70719
AGUIRRE,                                              12-72355

               Petitioner,                       Agency No. A045-920-210

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

               Respondent.



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

                             Submitted August 13, 2014**

Before:        SCHROEDER, THOMAS, and HURWITZ, Circuit Judges.

       Carlos Antonio Herrera-Aguirre, 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


          *
             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).
application for asylum, withholding of removal, and relief under the Convention

Against Torture (“CAT”) (No. 11-70719). Herrera-Aguirre also petitions for

review of the BIA’s denial of his motion to reopen removal proceedings, and

motion for reconsideration (No. 12-72355). Our jurisdiction is governed by 8

U.S.C. § 1252. We review for substantial evidence factual findings. Zehatye v.

Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). In petition No. 11-70719, we

dismiss in part, deny in part, and grant in part, and we remand. In petition No. 12-

72355, we dismiss.

      We lack jurisdiction to review Herrera-Aguirre’s unexhausted claim that the

government improperly charged him as removable based on a prior conviction.

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

      The government’s motion to strike the evidence submitted by Herrera-

Aguiree that is not contained in the administrative record is granted. See Fisher v.

INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

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

Herrera-Aguirre failed to establish that it is more likely than not he would be

tortured by or with the acquiescence of the government of El Salvador. See Silaya

v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). We reject Herrera-Aguirre’s

contention that the agency applied the wrong standard. See Zheng v. Ashcroft, 332


                                          2                                       11-70719
F.3d 1186, 1196 (9th Cir. 2003) (the correct inquiry is whether a public official

would demonstrate willful blindness or turn a blind eye to torture).

      In denying Herrera-Aguirre’s asylum and withholding of removal claims,

the agency found he failed to establish a fear of future persecution on account of a

protected ground. When the IJ and BIA issued their decisions in this case they did

not have the benefit of this court’s decisions in Henriquez-Rivas v. Holder, 707

F.3d 1081 (9th Cir. 2013) (en banc), Cordoba v. Holder, 726 F.3d 1106 (9th Cir.

2013), and Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014), or the BIA’s

decisions in Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014), and Matter of

W-G-R-, 26 I. & N. Dec. 208 (BIA 2014). Thus, we remand Herrera-Aguirre’s

asylum and withholding of removal claims to determine the impact, if any, of these

decisions. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per curiam). In light of

this remand, we do not reach Herrera-Aguirre’s remaining challenges to the

agency’s denial of his asylum and withholding of removal claims at this time.

      Further, in light of our grant and remand, we dismiss the petition for review

in No. 12-72355 because there is no final order of removal.




                                          3                                    11-70719
    Each party shall bear its own costs for these petitions for review.

    No. 11-70719: PETITION FOR REVIEW DISMISSED in part;

DENIED in part; GRANTED in part; REMANDED.

    No. 12-72355: PETITION FOR REVIEW DISMISSED.




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