                                                                            FILED
                             NOT FOR PUBLICATION                            MAY 01 2015

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



                             FOR THE NINTH CIRCUIT


WALTER A. AYALA, AKA Walter                      Nos. 12-71086
Alexis Ayala Garcia,                                  13-73784

               Petitioner,                       Agency No. A088-966-700

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.



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

                             Submitted April 22, 2015**

Before:        GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.

      Walter A. Ayala, 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 decision denying his application for asylum, withholding of



          *
             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).
removal, and protection under the Convention Against Torture (“CAT”) (No. 12-

71086), and also petitions for review of the BIA’s order denying his motion to

reopen (No. 13-73784). We have jurisdiction under 8 U.S.C. § 1252. We review

for substantial evidence factual findings. Zehatye v. Gonzales, 453 F.3d 1182,

1184-85 (9th Cir. 2006). We review for abuse of discretion the BIA’s denial of a

motion to reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). We

deny the petition for review in No. 12-71086 and grant the petition for review in

No. 13-73784, and we remand.

        The government’s unopposed motions to extend time to file answering briefs

in both petitions for review are granted. The briefs were filed on November 24,

2014.

        With respect to petition No. 12-71086, substantial evidence supports the

agency’s determination that Ayala failed to establish past persecution because his

experiences of receiving a death threat and dirty looks did not rise to the level of

persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (record did not

compel finding threats against petitioner constituted past persecution). Further, the

record before the agency did not compel the conclusion that Ayala established a

well-founded fear of persecution. See Molina-Estrada v. INS, 293 F.3d 1089,

1095-96 (9th Cir. 2002) (insufficient evidence).


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      Because Ayala failed to meet the lower standard of proof for asylum, his

claim for withholding of removal necessarily fails. See Zehatye, 453 F.3d at 1190.

      In addition, substantial evidence supports the agency’s denial of CAT relief

because Ayala failed to establish it is more likely than not he 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).

      With respect to petition No. 13-73784, the BIA concluded Ayala did not

show how changed country conditions in El Salvador warranted reopening, but

discounted his declaration for lack of personal knowledge. The BIA abused its

discretion in discounting Ayala’s declaration. See Bhasin, 423 F.3d at 987 (“facts

presented in affidavits supporting a motion to reopen must be accepted as true

unless inherently unbelievable”). Thus, we grant the petition for review and

remand for reconsideration of Ayala’s motion to reopen, accepting the facts

presented in his declaration as true. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)

(per curiam); Bhasin, 423 F.3d at 989 (remanding where BIA improperly

discounted testimony in petitioner’s affidavit).

      NO. 12-71086: PETITION FOR REVIEW DENIED.

      NO. 13-73784: PETITION FOR REVIEW GRANTED; REMANDED.




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