Alvarado-Morales v. Gonzales

MEMORANDUM ** Mario Rene Alvarado-Morales, a native and citizen of Guatemala, petitions for review of the order of the Board of Immigration Appeals (“BIA”) that affirmed the Immigration Judge’s (“IJ”) denial of his application for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 . We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000), and we grant the petition for review in part, deny in part, and remand. We conclude that the IJ’s and BIA’s determination that Alvarado-Morales failed to establish a well-founded fear of future persecution is not supported by substantial evidence in the record. Alvarado-Morales testified that a Guatemalan military intelligence unit killed his father and brother, and threatened him when he refused to reenlist in the Guatemalan army after being trained to serve in the same unit. He further testified that the unit was known to be involved in torture and murder during the Guatemalan civil war, *219 and the IJ and BIA determined that his testimony was credible. Accordingly, we grant the petition for review and remand to the BIA for further proceedings regarding Alvarado-Morales’ eligibility for asylum and withholding of removal. See INS v. Ventura, 537 U.S. 12, 16-17 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002) (per curiam). Substantial evidence supports the IJ’s and BIA’s decision that Alvarado-Morales has not shown that it is more likely than not that he would be tortured if he returns to Guatemala. See Singh v. Ashcroft, 351 F.3d 435, 443 (9th Cir.2003). Accordingly, we deny the petition with respect to the CAT claim. We reject Alvarado-Morales’ contention that the IJ and the BIA violated his due process rights. See 8 C.F.R. § 208.13 (a). PETITION GRANTED in part, DENIED in part, and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.