                                                                           FILED
                               NOT FOR PUBLICATION                          NOV 19 2012

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




                               FOR THE NINTH CIRCUIT



OTTO GUILLERMO PENA-CHAVEZ;                        No. 10-73559
MARIA DEL CARMEN PENA,
                                                   Agency Nos. A070-452-339
               Petitioners,                                    A072-402-161

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

               Respondent.



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

                              Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Otto Guillermo Pena-Chavez, a native and citizen of Guatemala, and Maria

Del Carmen Pena, a native and citizen of Mexico, petition for review of the Board

of Immigration Appeals’ order dismissing their appeal from an immigration




          *
             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).
judge’s decision denying their applications for cancellation of removal and

denying Pena-Chavez’s application for asylum, withholding of removal, and

protection under the Convention Against Torture (“CAT”). Our jurisdiction is

governed by 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), and we

review de novo due process claims, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th

Cir. 2004). We dismiss in part, deny in part, and grant in part the petition for

review, and we remand.

      We lack jurisdiction to review the agency’s discretionary determination that

petitioners failed to show exceptional and extremely unusual hardship to their

qualifying relatives, and petitioners do not raise a colorable due process claim

challenging this hardship determination. See De Mercado v. Mukasey, 566 F.3d

810, 816 (9th Cir. 2009); Torres-Aguilar v. INS, 246 F.3d 1267, 1271 (9th Cir.

2001). Accordingly, we dismiss the petition with respect to petitioners’

cancellation of removal claim.

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

Pena-Chavez failed to demonstrate it is more likely than not he will be tortured by

or with the acquiescence of the government if returned to Guatemala. See Siyala v.




                                           2                                       10-73559
Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). Accordingly, we deny the petition

with respect to CAT relief.

      With respect to Pena-Chavez’s application for asylum and withholding of

removal, substantial evidence does not support the agency’s nexus finding

regarding past persecution because Pena-Chavez’s testimony established that the

guerillas were motivated, at least in part, by his political opinion. See Borja v. INS,

175 F.3d 732, 736 (9th Cir. 1999) (en banc) (petitioner need only show the

attackers were motivated at least in part by a protected ground).1 Accordingly, we

grant the petition with respect to asylum and withholding of removal, and remand

for the agency to analyze the changed country conditions issue in accord with the

proper burden of proof. See INS v. Ventura, 537 U.S. 12, 16-18 (2002) (per

curiam); 8 C.F.R. § 1208.13(b)(1)(i)(A) and (ii).

      Each party shall bear its own costs for this petition for review.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part;

GRANTED in part; REMANDED.




      1
       The “at least in part” standard of Borja has been superseded by the REAL
ID Act, Pub.L. No. 109-13, div. B, § 101(h)(2), 119 Stat. 231, 305 (2005).
Because Pena-Chavez filed his asylum application before May 11, 2005, however,
we apply the pre-REAL ID standard.

                                           3                                    10-73559
