                                                                            FILED
                            NOT FOR PUBLICATION                             APR 04 2016

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



                             FOR THE NINTH CIRCUIT


JULIO GONZALEZ CRIOLLO,                          No. 10-72214

              Petitioner,                        Agency No. A026-614-398

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

              Respondent.


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

                            Submitted February 11, 2016**
                              San Francisco, California

Before: NOONAN, W. FLETCHER, and MURGUIA, Circuit Judges.

      Julio Gonzalez Criollo (“Criollo”) petitions for review of an order of the

Board of Immigration Appeals (“BIA”) denying his applications for asylum,

withholding of removal, relief under the Convention Against Torture (“CAT”) and

special rule cancellation of removal under the Nicaraguan Adjustment and Central

        *
             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).
American Relief Act (“NACARA”). Criollo also petitions for review of the BIA’s

denial of his motion for remand to the Immigration Judge (“IJ”) to allow him to

pursue cancellation of removal under 8 U.S.C. § 1229b(b)(1) (“non-LPR

cancellation of removal”). Finally, Criollo argues that the IJ and BIA erred in

failing to consider his eligibility for voluntary departure. We have jurisdiction

under 8 U.S.C. § 1252. We grant the petition in part, deny in part, and remand.

      Criollo’s claims for asylum, withholding of removal, special rule

cancellation under NACARA, and non-LPR cancellation of removal are subject to

the persecutor bar. 8 U.S.C. § 1158(b)(2)(A)(i) (asylum); id. § 1231(b)(3)(B)(i)

(withholding of removal); 8 C.F.R. § 1240.66(a) (NACARA special rule

cancellation); 8 U.S.C. § 1229b(c)(5) (non-LPR cancellation). Criollo testified in a

hearing before an IJ that as a member of the Salvadoran National Guard, he

investigated, arrested, and interrogated people because of their ties to leftist groups.

He turned these individuals over to his superiors knowing that they would likely be

tortured. Some of the people he arrested were subsequently “beaten like animals.”

This evidence indicates that Criollo was both “personally involved” in and

“purposefully assisted” persecution on account of political opinion, shifting the

burden to him to prove that he was not a persecutor. See 8 C.F.R. § 1240.8(d);

Miranda Alvarado v. Gonzales, 449 F.3d 915, 927 (9th Cir. 2006). Criollo failed

to carry that burden. Therefore, substantial evidence supports the BIA’s
conclusion that Criollo assisted in persecution and was ineligible for asylum,

withholding of removal, and NACARA special rule cancellation of removal.

      Additionally, even if the IJ erred in failing to inform Criollo of his “apparent

eligibility” for non-LPR cancellation of removal during initial proceedings, see 8

C.F.R. § 1240.11(a)(2), he cannot show that he was prejudiced, because he is

ineligible for that relief, too, on account of the persecutor bar. Consequently, the

BIA did not abuse its discretion in denying his motion to remand to pursue non-

LPR cancellation.

      Substantial evidence supports the BIA’s determination that Criollo has not

established entitlement to relief under the Convention Against Torture. The BIA

upheld the IJ’s finding that Criollo did not present credible evidence substantiating

his CAT claim. Even assuming his testimony was credible, Criollo has not shown

that it is more likely than not he will be tortured in El Salvador. 8 C.F.R. §

1208.16(c)(2). The fact that he was once questioned by the police after he reported

being captured by guerillas does not suffice to show that he would be tortured “by

or at the instigation of or with the consent or acquiescence of a public official” in

El Salvador. Id. § 1208.18(a)(1).

      Finally, Criollo argues that the IJ erred in failing to inform him of voluntary

departure or consider his eligibility for voluntary departure. Under the regulations,

an IJ “must advise a respondent of the forms of relief for which he or she is
apparently eligible, including voluntary departure.” Matter of C-B-, 25 I&N Dec.

888, 891 (BIA 2012) (citing 8 C.F.R. § 1240.11(a)(2)). The IJ did not discuss

voluntary departure at Criollo’s merits hearing nor in her written decision ordering

him removed. Criollo noted his apparent eligibility for voluntary departure in

briefing before the BIA, but the BIA did not address it. See 8 U.S.C. § 1229c(b).

We therefore remand for the BIA to consider whether Criollo is eligible for

voluntary departure. See Moran-Enriquez v. I.N.S., 884 F.2d 420, 422 (9th Cir.

1989) (“[I]f an IJ fails to advise an alien of an avenue of relief potentially available

to him, we will remand for consideration of the alien’s eligibility for that relief.”).

      Each party shall bear its own costs on appeal.

      GRANTED in part, DENIED in part, and REMANDED.
