FILED
NOT FOR PUBLICATION JUL 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANUEL DE JESUS MANCIA- No. 12-71726
GARCIA,
Agency No. A200-967-367
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Manuel de Jesus Mancia-Garcia, a native and citizen of Guatemala, petitions
pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his applications for
asylum, withholding of removal, and protection under the Convention Against
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, Zhou v. Gonzales, 437 F.3d 860,
864 (9th Cir. 2006), and we deny the petition for review.
As a preliminary matter, Mancia-Garcia’s contentions that the IJ’s adverse
credibility finding was unsupported and that it violated his due process rights fail
because the IJ found him credible.
Substantial evidence supports the BIA’s conclusion that Mancia-Garcia
failed to establish past persecution where his abusers were private actors, he did
not report the abuse, and the record evidence before the IJ does not compel the
conclusion that the police were unwilling or unable to protect homosexuals. See
Castro-Martinez v. Holder, 674 F.3d 1073, 1080-82 (9th Cir. 2011). Substantial
evidence also supports the BIA’s conclusion that Mancia-Garcia failed to establish
a well-founded fear of persecution based on his sexual orientation where the record
evidence before the IJ did not show that the government would be unable or
unwilling to protect him, see id., or a pattern or practice of persecution of
homosexuals in Guatemala, see Wakkary v. Holder, 558 F.3d 1049, 1061-62 (9th
Cir. 2009). Accordingly, Mancia-Garcia’s asylum claim fails.
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Because Mancia-Garcia failed to establish eligibility for asylum, he
necessarily fails to meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence supports the BIA’s denial of CAT protection because
Mancia-Garcia failed to demonstrate it is more likely than not he will be tortured
by or with the consent or acquiescence of the Guatemalan government. See Silaya
v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).
We do not consider the declaration submitted by Mancia-Garcia that is not
contained in the administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th
Cir. 1996) (en banc). Further, we do not consider Mancia-Garcia’s country
conditions evidence apart from the 2010 country report – this additional evidence
was not before the IJ, Mancia-Garcia did not cite to or otherwise make the BIA
aware of the evidence on appeal, and there is no indication the BIA reviewed it.
The stay of removal granted on November 7, 2012 continues in effect until
the mandate issues. Thus, we deny Mancia-Garcia’s renewed motion to stay
removal as unnecessary.
PETITION FOR REVIEW DENIED.
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