NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS ALONSO BARILLAS-GAMERO, 

Petitioner, 

 v. 

WILLIAM P. BARR, Attorney General, 

Respondent.

No. 19-72619 

Agency No. A215-562-504 

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted September 8, 2020**

Before: TASHIMA, SILVERMAN, and OWENS, Circuit Judges. 

Luis Alonso Barillas-Gamero, a native and citizen of El Salvador, petitions 

for review of the Board of Immigration Appeals’ (“BIA”) order denying his 

request to remand and dismissing his appeal from an immigration judge’s (“IJ”) 

decision denying his applications for cancellation of removal, asylum, withholding 

of removal, and relief under the Convention Against Torture (“CAT”). Our

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

SEP 16 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 19-72619 

jurisdiction is governed by 8 U.S.C. § 1252. We review for abuse of discretion the 

agency’s denial of a motion to remand, Taggar v. Holder, 736 F.3d 886, 889 (9th 

Cir. 2013), and its denial of a motion to continue, Sandoval-Luna v. Mukasey, 526 

F.3d 1243, 1247 (9th Cir. 2008). We review de novo questions of law, Cerezo v. 

Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference 

is owed to the BIA’s interpretation of the governing statutes and regulations, 

Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for 

substantial evidence the agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 

1182, 1184-85 (9th Cir. 2006). We deny in part, dismiss in part, and grant in part

the petition for review, and we remand.

The BIA did not abuse its discretion in denying Barillas-Gamero’s request to 

remand for a competency inquiry. See Movsisian v. Ashcroft, 395 F.3d 1095, 1098 

(9th Cir. 2005) (the BIA abuses its discretion if it acts arbitrarily, irrationally, or 

contrary to law); see also Salgado v. Sessions, 889 F.3d 982, 987-88 (9th Cir. 

2018) (no abuse of discretion where there were no indicia that petitioner was

unable to understand the nature or object of the proceedings) (citing Matter of MA-M-, 25 I. & N. Dec. 474 (BIA 2011)). We lack jurisdiction to consider BarillasGamero’s contention that the IJ violated due process by not making a competency 

finding. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004) (court lacks 

jurisdiction to review claims not presented to the agency).
3 19-72619 

As to cancellation of removal, the agency did not abuse its discretion by 

denying a continuance. See 8 C.F.R. § 1003.29. We lack jurisdiction to consider 

Barillas-Gamero’s contention that the IJ’s denial of a continuance violated his due 

process rights. See Barron, 358 F.3d at 677-78. We also lack jurisdiction to 

review the IJ’s discretionary hardship determination. See Martinez-Rosas v. 

Gonzales, 424 F.3d 926, 930 (9th Cir. 2005) (this court’s jurisdiction is limited to 

constitutional claims and questions of law).

The record does not compel the conclusion that Barillas-Gamero established 

changed or extraordinary circumstances to excuse his untimely asylum application. 

See 8 C.F.R. § 1208.4(a)(4)-(5).

As to withholding of removal, the BIA erred in finding that BarillasGamero’s past harm did not rise to the level of persecution, where the IJ did not 

make that finding. See Rodriguez v. Holder, 683 F.3d 1164, 1173 (9th Cir. 2012) 

(BIA may not make its own factual findings). Further, the agency erred in 

determining that Barillas-Gamero failed to establish membership in a cognizable 

particular social group because it did not conduct the requisite analysis. See PirirBoc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014) (remanding where the agency 

“did not perform the required evidence-based inquiry”). The agency also erred by 

failing to consider Barillas-Gamero’s imputed political opinion claim. See

Sagaydak v. Gonzales, 405 F.3d 1035, 1040 (9th Cir. 2005) (“[T]he BIA [is] not 
4 19-72619 

free to ignore arguments raised by a petitioner.”). Thus, we grant the petition for 

review, and remand Barillas-Gamero’s withholding of removal claim to the agency 

for further proceedings consistent with this disposition. See INS v. Ventura, 537 

U.S. 12, 16-18 (2002) (per curiam).

Substantial evidence supports the agency’s denial of CAT relief because 

Barillas-Gamero failed to show it is more likely than not he would be tortured by 

or with the consent or acquiescence of the government if returned to El Salvador. 

See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). 

The motion for a stay of removal (Docket Entry No. 1) is granted. BarillasGamero’s removal is stayed pending a decision by the BIA. 

The government must bear the costs for this petition for review.

PETITION FOR REVIEW DENIED in part; DISMISSED in part; 

GRANTED in part; REMANDED.