FILED
NOT FOR PUBLICATION OCT 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE MANUEL GUERERRO ORTEGA, No. 09-70941
Petitioner, Agency No. A093-488-357
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2010 **
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
Jose Manuel Guererro Ortega, a native and citizen of Mexico, 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 application for
asylum, withholding of removal, and relief under the Convention Against Torture
*
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).
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence findings of fact, Ornelas-Chavez v. Gonzales, 458 F.3d 1052,
1055-56 (9th Cir. 2006), and de novo claims of due process violations, Colmenar
v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part and dismiss in part the
petition for review.
Substantial evidence supports the BIA’s finding that petitioner did not
establish past persecution or a well-founded fear of future persecution, because he
failed to demonstrate he was or will be harmed based on his homosexuality by
forces the Mexican government is unwilling or unable to control. See Nahrvani v.
Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005); see also Castro-Perez v. Gonzales,
409 F.3d 1069, 1072 (9th Cir. 2005) (failure to report non-governmental
persecution due to belief that police would do nothing did not establish that
government was unwilling or unable to control persecutors). Accordingly,
petitioner’s asylum claim fails.
Because petitioner did not establish eligibility for asylum, it follows that he
did not satisfy 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 petitioner’s CAT claim
because he failed to demonstrate it is more likely than not he will be tortured if
2 09-70941
returned to Mexico. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir.
2007).
Petitioner’s contention that the IJ erred by excluding certain documents
without affording petitioner notice of the deficiencies or an opportunity to correct
them is not supported by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th
Cir. 2006) (requiring error and substantial prejudice to prevail on a due process
claim). We lack jurisdiction to review petitioner’s contentions that: (1) the IJ erred
by not letting petitioner explain the men who raped him in 1983 were released
early from prison due to family connections; and (2) the IJ exhibited bias towards
homosexuals, because these claims were not raised before the BIA. See Barron v.
Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).
Finally, we decline to consider the evidence petitioner attached to his
opening brief because our review is limited to the administrative record underlying
the IJ’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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