                                                                           FILED
                             NOT FOR PUBLICATION                           MAY 29 2014

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



                             FOR THE NINTH CIRCUIT


EDWIN HERNANDEZ-GARCIA,                          No. 12-71729

               Petitioner,                       Agency No. A200-211-912

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

               Respondent.


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

                             Submitted May 13, 2014**

Before:        CLIFTON, BEA, and WATFORD, Circuit Judges.

       Edwin Hernandez-Garcia, a native and citizen of Honduras, petitions pro se

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

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

asylum, withholding of removal, and relief under the Convention Against Torture


          *
             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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence factual findings, and review de novo questions of law.

Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). We dismiss in part,

deny in part, and grant in part the petition for review.

      Hernandez-Garcia’s motion for bond or release is denied. Hernandez-

Garcia may seek administrative remedies. See, e.g., Leonardo v. Crawford, 646

F.3d 1157, 1160 (9th Cir. 2011).

       Hernandez-Garcia’s motion for stay of removal was granted on September

7, 2012, so his second request for stay of removal is denied as moot. The stay

remains in effect until the mandate issues in this case.

      We lack jurisdiction to review Hernandez-Garcia’s contention that the IJ

mischaracterized his testimony and failed to “engage” the evidence. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (court lacks jurisdiction to review

claims that could have been raised below).

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

Hernandez-Garcia failed to show it is more likely than not he will be tortured with

the consent or acquiescence of the Honduran government. See Santos-Lemus v.

Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008).




                                           2                                  12-71729
      In finding that Hernandez-Garcia did not establish the Honduran government

was unable or unwilling to protect him, the BIA erred in relying exclusively on his

failure to report his encounters with gangs to the police. See Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (concluding that the applicant need

not report to the police if he can establish that doing so would have been futile or

subjected him to further abuse). Furthermore, when the IJ and BIA issued their

decisions they did not have the benefit of either this court’s decisions in

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc), and Cordoba

v. Holder, 726 F.3d 1106 (9th Cir. 2013), 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 grant the petition as to Hernandez-Garcia’s asylum and

withholding of removal claims and remand for further proceedings consistent with

this disposition, including a determination of the impact, if any, of these decisions.

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

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

      PETITION FOR REVIEW DISMISSED in part; DENIED in part;

GRANTED in part; and REMANDED.




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