Jorge D. Mercado, aka Jorge David Mercado v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JORGE D. MERCADO, aka Jorge David
Mercado,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
No. 13-70662
Agency No. A094-181-976
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued December 11, 2015; Resubmitted August 9, 2016
San Francisco, California
Before: GRABER and WARDLAW, Circuit Judges, and MARQUEZ,** District
Judge.
Petitioner Jorge David Mercado, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision
dismissing his appeal from an immigration judge’s decision denying his
FILED
AUG 18 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Rosemary Marquez, United States District Judge for
the District of Arizona, sitting by designation.

-- 1 of 2 --

applications for asylum, withholding of removal, and relief under the Convention
Against Torture. When Petitioner applied for asylum in 1995, he was a minor
child whose mother had been granted asylum. The child of an alien who is granted
asylum under 8 U.S.C. § 1158 “may, if not otherwise eligible for asylum under
this section, be granted the same status as the alien if accompanying, or following
to join, such alien.” 8 U.S.C. § 1158(b)(3)(A). The government failed to process
Petitioner’s asylum application until 2009, by which time Petitioner had reached
the age of 21 and married. We remand on an open record for the BIA to consider
whether Petitioner was entitled to derivative asylum pursuant to 8 U.S.C.
§ 1158(b)(3), or otherwise, when he applied for asylum in 1995, and whether he
should be granted asylum nunc pro tunc to that time. Because we remand for the
BIA to consider whether Petitioner should be granted asylum nunc pro tunc, we do
not reach the other issues raised in Petitioner’s Petition for Review.
PETITION FOR REVIEW GRANTED; REMANDED.
2

-- 2 of 2 --