Otto Guillermo Pena-Chavez; Maria Del Carmen Pena v. ERIC H. HOLDER, Jr., Attorney General

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OTTO GUILLERMO PENA-CHAVEZ;
MARIA DEL CARMEN PENA,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-73559
Agency Nos. A070-452-339
A072-402-161
MEMORANDUM*
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
FILED
NOV 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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.

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The “at least in part” standard of Borja has been superseded by the REAL1
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.
10-73559 3
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). Accordingly, we1
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.

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