WALTER A. AYALA, AKA Walter Alexis Ayala Garcia v. LORETTA E. LYNCH, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER A. AYALA, AKA Walter
Alexis Ayala Garcia,
Petitioner,
v.
LORETTA E. LYNCH, Attorney General,
Respondent.
Nos. 12-71086
13-73784
Agency No. A088-966-700
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 22, 2015**
Before: GOODWIN, BYBEE, and CHRISTEN, Circuit Judges.
Walter A. Ayala, a native and citizen of El Salvador, petitions for review of
the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for asylum, withholding of
FILED
MAY 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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removal, and protection under the Convention Against Torture (“CAT”) (No. 12-
71086), and also petitions for review of the BIA’s order denying his motion to
reopen (No. 13-73784). We have jurisdiction under 8 U.S.C. § 1252. We review
for substantial evidence factual findings. Zehatye v. Gonzales, 453 F.3d 1182,
1184-85 (9th Cir. 2006). We review for abuse of discretion the BIA’s denial of a
motion to reopen. Bhasin v. Gonzales, 423 F.3d 977, 983 (9th Cir. 2005). We
deny the petition for review in No. 12-71086 and grant the petition for review in
No. 13-73784, and we remand.
The government’s unopposed motions to extend time to file answering briefs
in both petitions for review are granted. The briefs were filed on November 24,
2014.
With respect to petition No. 12-71086, substantial evidence supports the
agency’s determination that Ayala failed to establish past persecution because his
experiences of receiving a death threat and dirty looks did not rise to the level of
persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (record did not
compel finding threats against petitioner constituted past persecution). Further, the
record before the agency did not compel the conclusion that Ayala established a
well-founded fear of persecution. See Molina-Estrada v. INS, 293 F.3d 1089,
1095-96 (9th Cir. 2002) (insufficient evidence).
12-71086/13-73784 2

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Because Ayala failed to meet the lower standard of proof for asylum, his
claim for withholding of removal necessarily fails. See Zehatye, 453 F.3d at 1190.
In addition, substantial evidence supports the agency’s denial of CAT relief
because Ayala failed to establish it is more likely than not he would be tortured at
the instigation of or with the acquiescence of the government if returned to El
Salvador. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
With respect to petition No. 13-73784, the BIA concluded Ayala did not
show how changed country conditions in El Salvador warranted reopening, but
discounted his declaration for lack of personal knowledge. The BIA abused its
discretion in discounting Ayala’s declaration. See Bhasin, 423 F.3d at 987 (“facts
presented in affidavits supporting a motion to reopen must be accepted as true
unless inherently unbelievable”). Thus, we grant the petition for review and
remand for reconsideration of Ayala’s motion to reopen, accepting the facts
presented in his declaration as true. See INS v. Ventura, 537 U.S. 12, 16-18 (2002)
(per curiam); Bhasin, 423 F.3d at 989 (remanding where BIA improperly
discounted testimony in petitioner’s affidavit).
NO. 12-71086: PETITION FOR REVIEW DENIED.
NO. 13-73784: PETITION FOR REVIEW GRANTED; REMANDED.
12-71086/13-73784 3

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