Fernandez v. Gonzales

MEMORANDUM ** Manuel Torres Fernandez, a native and citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision, affirming the Immigration Judge’s (“IJ”) order denying his application for withholding of removal, and relief under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 . When, as here, the BIA affirms without an opinion, we review the IJ’s decision directly. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We review for substantial evidence, Lim v. INS, 224 F.3d 929, 933 (9th Cir.2000), and we deny the petition for review in part, grant the petition in part, and remand. Substantial evidence supports the IJ’s denial of CAT relief because Fernandez did not establish that is more likely than not that he would be tortured if returned to the Philippines. See Zheng v. Ashcroft, 332 F.3d 1186, 1194-95 (9th Cir.2003). Because the IJ failed to set forth findings as to whether Fernandez suffered past persecution, which would give rise to a presumption that he is entitled to withholding of removal, see Baballah v. Ashcroft, 367 F.3d 1067, 1079 (9th Cir.2004), we grant the petition for review with regard to Fernandez’s withholding of removal claim, and remand the case to the BIA for further proceedings. See INS v. Ventura, 537 U.S. 12, 16-18 , 123 S.Ct. 353 , 154 L.Ed.2d 272 (2002) (per curiam). PETITION FOR REVIEW DENIED in part, GRANTED in part, and REMANDED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.