FILED
NOT FOR PUBLICATION SEP 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
AXEL LEONEL ESPINO-OLIVA, No. 08-74367
Petitioner, Agency No. A078-972-424
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Axel Leonel Espino-Oliva, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. This court reviews 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 determination of the governing statutes
and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). This
court reviews factual findings for substantial evidence. Zehatye v. Gonzales, 453
F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.
We reject petitioner’s claim that he is eligible for asylum or withholding of
removal based upon an imputed political opinion or his membership in a particular
social group. See Barrios v. Holder, 581 F.3d 849, 854-56 (9th Cir. 2009);
Santos-Lemus v. Mukasey, 542 F.3d 738, 744-47 (9th Cir. 2008); see also
Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009) ( “The Real ID Act
requires that a protected ground represent ‘one central reason’ for an asylum
applicant’s persecution”). To the extent petitioner contends he is a member of a
particular social group distinct from that considered and rejected by the BIA, we
lack jurisdiction to consider the contention because he did not exhaust it. See
Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Petitioner’s claim for
humanitarian asylum necessarily fails because he did not establish past
persecution. See 8 C.F.R. § 1208.13(b)(1)(iii). Accordingly, because petitioner
failed to demonstrate that he was or will be persecuted on account of a protected
2 08-74367
ground, we deny the petition as to his asylum and withholding of removal claims.
See Barrios, 581 F.3d at 856.
Substantial evidence supports the BIA’s denial of CAT relief because
petitioner failed to show it is more likely than not that he would be tortured if
returned to Guatemala. See Santos-Lemus, 542 F.3d at 747-48.
Petitioner requests that his case be remanded in order to seek voluntary
departure, because his counsel erred in initially advising him not to request this
relief. We reject this request because petitioner already presented this claim to the
agency.
PETITION FOR REVIEW DENIED.
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