                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            JUL 25 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT



RUTILIO ALFREDO ZALDANA-                         No. 12-73999
MORALES,
                                                 Agency Nos. A094-927-714
              Petitioner,

 v.

LORETTA E. LYNCH, Attorney General,              MEMORANDUM*

              Respondent.



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

                        Argued and Submitted July 8, 2016
                              Pasadena, California


Before: VANASKIE,** MURGUIA, and WATFORD, Circuit Judges.

      Rutilio Alfredo Zaldana-Morales, a native and citizen of El Salvador,

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


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Thomas I. Vanaskie, United States Circuit Judge for
the U.S. Court of Appeals for the Third Circuit, sitting by designation.
dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his

request for asylum, withholding of removal, and protection under the Convention

Against Torture (“CAT”). We grant his petition for review and remand his case to

the BIA for further proceedings.

      We have jurisdiction pursuant to 8 U.S.C. § 1252.1 A BIA determination

that an applicant is not eligible for asylum, withholding of removal, or CAT relief

“must be upheld if supported by reasonable, substantial, and probative evidence on

the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992) (internal quotation marks omitted).

      Zaldana-Morales sought asylum and withholding of removal based upon

past persecution and fear of future persecution due to the fact that he had come

forward as a witness against violent gang activity in El Salvador, and identified a

specific person as a leader of this gang activity. In rejecting this claim, the BIA did

not have the benefit of our en banc decision in Henriquez-Rivas v. Holder, 707



      1
         We reject the Government’s argument that this Court does not have jurisdiction
to hear Zaldana-Morales’s appeal because he failed to exhaust his administrative
remedies with regard to his asylum and withholding of removal claims based on his
purported membership in a protected group of witnesses against gangs. Because the BIA
had notice of Zaldana-Morales’s claims and specifically commented on their merits, the
claims are properly exhausted. See Vizcarra-Ayala v. Mukasey, 514 F.3d 870, 874 (9th
Cir. 2008) (“The BIA had notice of the claim and ruled on the merits. There was
therefore adequate exhaustion.”).

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F.3d 1081 (9th Cir. 2013), holding that Salvadoran witnesses who testified against

gang members could constitute a protected social group for asylum purposes.

Accordingly, we remand this matter to the BIA to consider in the first instance the

impact of Henriquez-Rivas on the asylum and withholding of removal application

made by Zaldana-Morales.

      Moreover, we find that the BIA’s holdings that Zaldana-Morales failed to

sustain his burden of proving past persecution or a well-founded fear of future

persecution on account of a protected ground, as well as eligibility for withholding

of removal and CAT protection, cannot be sustained on the basis of the present

record. In this regard, the record does not include any information to sustain the

BIA’s assertion that the person identified by Zaldana-Morales as the alleged

perpetrator of gang activity was prosecuted. Nor does the record support the

finding that Zaldana-Morales’ identification of the responsible gang leader to the

police was not a central reason for the gang’s threat against his life. The record

also does not contain country condition reports and is otherwise inadequate for the

BIA to make a full and fair determination regarding whether Zaldana-Morales had

a reasonable fear of future persecution and whether he was eligible for protection

under the CAT. We therefore remand the case to the BIA to further develop the

administrative record with evidence regarding the country conditions in El


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Salvador at the time Zaldana-Morales left the country.

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

            PETITION FOR REVIEW GRANTED; REMANDED.




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