1

Where, as here, the BIA adopts the IJ’s decision and adds its own reasoning,

this court reviews both decisions together. See Quomsieh v. Gonzales, 479 F.3d 602,

605 (8th Cir. 2007).

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 06-4019

___________

Oralia Gicela Cifuentes-Jocol, *

*

Petitioner, *

* Petition for Review of

v. * an Order of the Board

* of Immigration Appeals.

Michael Mukasey, Attorney General, *

* [UNPUBLISHED]

Respondent. *

___________

Submitted: September 30, 2008

Filed: October 9, 2008

___________

Before WOLLMAN, SMITH, and GRUENDER, Circuit Judges.

___________

PER CURIAM.

Guatemalan citizen Oralia Gicela Cifuentes-Jocol petitions for review of an

order of the Board of Immigration Appeals (BIA), which affirmed an Immigration

Judge’s (IJ’s) denial of her application for asylum, withholding of removal, and relief

under the Convention Against Torture (CAT).1
-2-

We grant the petition insofar as it relates to Cifuentes-Jocol’s claim for

withholding of removal based on religious persecution because, in analyzing the

claim, the IJ did not proceed according to the analytical framework of 8 C.F.R.

§ 1208.16(b). That is, the IJ did not first determine whether Cifuentes-Jocol

established past persecution on account of religion; rather, he concluded that she had

not demonstrated that it was more likely than not she would be harmed on account of

her religion if she returned to Guatemala. Because a finding of past persecution gives

rise to a rebuttable presumption “that the applicant’s life or freedom would be

threatened in the future in the country of removal on the basis of the original claim,”

8 C.F.R. § 1208.16(b)(1)(i), it was legal error for the IJ to require Cifuentes-Jocol to

demonstrate a well-founded fear of future persecution “without making the antecedent

determination as to whether [she] established past persecution,” Bushira v. Gonzales,

442 F.3d 626, 632 (8th Cir. 2006). The IJ’s error was not cured by the BIA, which

merely agreed with the IJ’s conclusion that Cifuentes-Jocol failed to establish she

would have any problem in the future in Guatemala on account of her religion. Under

these circumstances, remand is appropriate to allow the agency to make the requisite

factual and legal determinations relating to Cifuentes-Jocol’s allegations of past

persecution on account of religion. See Uli v. Mukasey, 533 F.3d 950, 956 (8th Cir.

2008); Bushira, 442 F.3d at 633.

As to Cifuentes-Jocol’s other claims, we lack jurisdiction to review the

determination that her asylum application was barred as untimely filed, see 8 U.S.C.

§ 1158(a)(3); Purwantono v. Gonzales, 498 F.3d 822, 824 (8th Cir. 2007), and we

conclude the denial of her claims for withholding of removal based on political

persecution and for CAT relief were supported by substantial evidence in the record,

see Miah v. Mukasey, 519 F.3d 784, 788 (8th Cir. 2008) (standard of review for CAT

claim); Ming Ming Wijono v. Gonzales, 439 F.3d 868, 872, 874 (8th Cir. 2006)

(standard of review for withholding-of-removal claim).
-3-

Accordingly, we deny the petition with respect to the claims for asylum,

withholding of removal based on political persecution, and CAT relief; we grant the

petition with respect to the claim for withholding of removal based on religious

persecution; and we remand for further proceedings consistent with this opinion. 

______________________________