                                                                            FILED
                             NOT FOR PUBLICATION                             JUN 03 2011

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




                             FOR THE NINTH CIRCUIT



LUIS GOMEZ-MENDOZA,                              No. 08-70930

               Petitioner,                       Agency No. A098-525-375

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

               Respondent.



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

                             Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       Luis Gomez-Mendoza, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ order dismissing his appeal from an

immigration judge’s (“IJ”) decision denying his application for asylum,

withholding of removal, and protection 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”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence. Ahmed v. Keisler, 504 F.3d 1183, 1191 (9th Cir. 2007). We deny in part

and grant in part the petition for review, and we remand.

      Substantial evidence supports the IJ’s denial of CAT relief because Gomez-

Mendoza failed to establish it is more likely than not that he will be tortured if

returned to Guatemala. See id. at 1201.

      With respect to Gomez-Mendoza’s asylum and withholding of removal

claims, substantial evidence does not support the IJ’s nexus determination, because

Gomez-Mendoza established that a rival ethnic and political group attacked him, at

least in part, on account of a protected ground. See Navas v. INS, 217 F.3d 646,

658-62 (9th Cir. 2000); see also Gafoor v. INS, 231 F.3d 645, 651-52 (9th

Cir. 2000) (soldiers’ statements to “go back to India” were unmistakable

circumstantial evidence that they were motivated, at least in part, by petitioner’s

race and imputed political opinion).1 Because the IJ erred in his nexus

determination, he did not fully consider Gomez-Mendoza’s claim of past

persecution, and whether Gomez-Mendoza has a presumption of future



      1
        The mixed motive analysis employed in Gafoor has been superseded by
statute. See Parussimova v. Mukasey, 555 F.3d 734, 740-41 (9th Cir. 2009).
Nevertheless, this case was filed prior to the REAL ID Act, and thus the prior case
law applies.

                                           2                                     08-70930
persecution. See Navas, 217 F.3d at 657. Accordingly, we grant the petition as to

Gomez-Mendoza’s asylum and withholding of removal claims, and remand for

further proceedings consistent with this disposition. See INS v. Ventura, 537 U.S.

12, 16-18 (2002) (per curiam).

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

      PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.




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