                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        JUN 25 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

IGNACIO ROLANDO PAREJA ROJAS,                   No.    15-73315
AKA Ricardo Gomez, AKA Juan Perez
Gonzalez,                                       Agency No. A206-912-789

                Petitioner,
                                                MEMORANDUM*
 v.

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                       Argued and Submitted June 12, 2018
                            San Francisco, California

Before: SILER,** PAEZ, and IKUTA, Circuit Judges.

      Petitioner Ignacio Pareja Rojas petitions for review of the Board of

Immigration Appeals’ (“BIA”) decision denying his asylum, withholding of

removal, and Convention Against Torture (“CAT”) claims and rejecting his due


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
process claim. We have jurisdiction under 8 U.S.C. § 1252. We review “the

[BIA’s] legal conclusions de novo and its factual findings for substantial

evidence.” Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017)

(en banc). We review “claims of due process violations in deportation proceedings

de novo.” Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We grant the

petition for review in part, deny in part, and remand for further proceedings.

1.    The BIA failed to credit Pareja Rojas’s credible testimony and apply the

totality-of-the-circumstances approach required under Madrigal v. Holder, 716

F.3d 499 (9th Cir. 2013). When persecutors do not conveniently announce

themselves and their intentions prior to shooting at a person who later seeks

asylum, we accept that a “persecutor’s identity . . . may be established by . . .

circumstantial evidence.” Karouni v. Gonzales, 399 F.3d 1163, 1174 (9th Cir.

2005) (emphasis in original). The BIA’s determination that Pareja Rojas had failed

to provide such circumstantial evidence here is not supported by substantial

evidence.

      Pareja Rojas testified that within months of reporting a member of a drug

organization to the police, he started receiving death threats at home. These calls

accused him of snitching and threatened to kill him in retribution. When Pareja

Rojas moved, unknown individuals appeared in his new neighborhood shortly

thereafter to inquire after his whereabouts. A few months later, Pareja Rojas was


                                           2
shot at six or seven times on his way to a local supermarket. Pareja Rojas testified

that prior to making the report, he had never been threatened before.

      When “[v]iewed in context,” Pareja Rojas has plausibly alleged one

continuous course of conduct that rises to the level of persecution. Madrigal, 716

F.3d at 505. Because his explanation for the shooting is plausible and supported

by circumstantial evidence, “it must be credited in the absence of an explanation

that is at least as plausible.” Id. (emphasis added). Accordingly, we grant Pareja

Rojas’s petition for review of his asylum and withholding claims and remand for

the agency to consider whether other plausible explanations for the shooting exist.1

See id.

2.        In contrast, the BIA’s determination that Pareja Rojas was not entitled to

relief on his CAT claim is supported by substantial evidence. Petitioners seeking

to prevail on a CAT claim “must show . . . a greater than 50 percent likelihood that

[they] will be tortured.” Id. at 508. Because the IJ was entitled to rely on

conflicting evidence in the country conditions report, see Konou v. Holder, 750

F.3d 1120, 1125 (9th Cir. 2014), the record does not compel the conclusion that

Pareja Rojas’s testimony alone established a greater-than-fifty-percent likelihood



1
 We do not address the IJ’s alternative grounds for denying Pareja Rojas relief.
The BIA declined to address those issues in its decision, which means they are not
properly before us for review. See Lin v. Gonzales, 473 F.3d 979, 983 (9th Cir.
2007).

                                            3
of future torture. We therefore deny Pareja Rojas’s petition for review of his CAT

claim.

3.       We likewise deny Pareja Rojas’s petition for review of his due process

claim. Even assuming that the IJ violated Pareja Rojas’s due process rights, Pareja

Rojas has failed to show prejudice. There is no indication that the “IJ’s conduct

potentially affected the outcome of the proceedings.” Cano-Merida v. INS, 311

F.3d 960, 965 (9th Cir. 2002) (citation and alteration omitted). Pareja Rojas

received a full merits hearing and called two of his three available witnesses.

Moreover, counsel for Pareja Rojas admitted at the hearing that he thought the

third witness would say “similar things,” which indicates that even if the IJ

wrongly excluded her testimony, the introduction of that testimony would not have

introduced differences that could have altered the outcome of the proceeding.

         PETITION FOR REVIEW GRANTED IN PART, DENIED IN PART,

AND REMANDED.




                                           4
