Opinion
NOT FOR PUBLICATION
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A78-368-870 A78-368-871
Before: GRABER, FISHER, and BERZON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Jose Juan Montes Perez and Silvia Morales, husband and wife and natives and citizens of Mexico, petition for review of the Board of Immigration Appeals§ (§BIA§) order dismissing their appeal from an immigration judge§s (§IJ§) decision denying their applications for asylum, withholding of removal, protection under the Convention Against Torture (§CAT§), and cancellation of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We grant in part, deny in part, and dismiss in part the petition for review, and remand for further proceedings.
The record does not compel the conclusion that petitioners demonstrated exceptional circumstances to excuse the untimely filing of their asylum application. See 8 U.S.C. § 1158(a)(2)(D); 8 C.F.R. § 1208.4(a)(5).
Substantial evidence does not support the BIA§s denial of withholding of removal. The IJ failed to make a finding as to whether or not petitioners demonstrated past persecution. See Matter of D-I-M-, 24 I. & N. Dec. 448, 451 (BIA 2008) (§[I]t is of paramount importance that Immigration Judges make a specific finding that an applicant either has or has not suffered past persecution.§) It is therefore not possible to ascertain whether or not it should be presumed that petitioners§ lives or freedom would be threatened in the future. See 8 C.F.R. § 1208.16(b)(1)(i). Although the BIA stated summarily the conclusion that the petitioner had not proven past persecution, no reasons were provided in support of that ruling. See Garrovillas v. INS, 156 F.3d 1010, 1013 (9th Cir. 1998). We therefore remand for the IJ to make a reasoned and specific finding.
Substantial evidence supports the BIA§s denial of CAT protection because petitioners did not establish that is more likely than not that they would be tortured if returned to Mexico. See Hasan v. Ashcroft, 380 F.3d 1114, 1122-23 (9th Cir. 2004).
Under 8 U.S.C. § 1252(a)(2)(B)(i), we lack jurisdiction to review the agency§s §exceptional and extremely unusual hardship§ determination. Martinez-Rosas v. Gonzales, 424 F.3d 926, 929-30 (9th Cir. 2005).
PETITION FOR REVIEW GRANTED in part; DENIED in part; DISMISSED in part; REMANDED.