                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 28 2015

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



                             FOR THE NINTH CIRCUIT


MAYRA EVELYN MARTINEZ-                           No. 10-70383
ALFARO,
                                                 Agency No. A097-745-104
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Mayra Evelyn Martinez Alfaro, a native and citizen of El Salvador, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

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

asylum, withholding of removal, and protection under the Convention Against

          *
             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).
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for

substantial evidence the agency’s 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.

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

Martinez-Alfaro failed to establish it is more likely than not she would be tortured

at the instigation of or with the acquiescence of the government if returned to El

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

      In denying Martinez-Alfaro’s asylum and withholding of removal claims,

the BIA found Martinez-Alfaro failed to establish a nexus to a protected ground.

When the BIA issued its decision, it 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).

      Further, with respect to asylum, Martinez-Alfaro explained to the BIA that

she was stopped at the border and issued a Notice to Appear (“NTA”) on January

13, 2004. The record reflects the government did not submit the NTA to the IJ or

request a new hearing date until June 28, 2005. Martinez-Alfaro argued to the BIA


                                          2                                     10-70383
that she could not have filed her asylum application within the one-year deadline

because she was not given a court date until after it had passed. The BIA did not

address Martinez-Alfaro’s argument that, under the circumstances described, her

untimely asylum application should be excused. See Sagaydak v. Gonzales, 403

F.3d 1035, 1040 (9th Cir. 2005). In assessing whether Martinez-Alfaro met an

exception to the one-year filing deadline, the BIA should consider whether service

of the NTA meant Martinez-Alfaro had to file her asylum application with the IJ,

and had to wait for a court appearance to do so, or whether she had other avenues

for filing her asylum application.

      Thus, we remand Martinez-Alfaro’s asylum and withholding of removal

claims to reassess her claim of extraordinary circumstances and to determine the

impact, if any, of the foregoing social group decisions on the merits of her claims.

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

remand, we do not reach Martinez-Alfaro’s remaining challenges to the agency’s

denial of her asylum and withholding of removal claims at this time, nor do we

reach any requests for relief that Martinez-Alfaro did not raise to the agency.

      Respondent’s motion to place this case in mediation is denied.




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   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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