FILED
NOT FOR PUBLICATION APR 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CARLOS ERNESTO HERNANDEZ- No. 08-72146
AQUINO,
Agency No. A098-793-497
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
Carlos Ernesto Hernandez-Aquino, a native and citizen of El Salvador,
petitions for review of a Board of Immigration Appeals (“BIA”) order dismissing
his appeal from an immigration judge’s (“IJ”) decision denying his application for
*
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).
asylum, withholding of removal, and protection under the Convention Against
Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252. We review for
substantial evidence factual findings, Santos-Lemus v. Mukasey, 542 F.3d 738, 742
(9th Cir. 2008), and we review de novo due process claims, Ram v. INS, 243 F.3d
510, 516 (9th Cir. 2001). We deny the petition for review.
Substantial evidence supports the agency’s determination that the threats
gang members made against Hernandez-Aquino did not constitute persecution.
See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000). Substantial evidence also
supports the agency’s determination that Hernandez-Aquino failed to establish past
persecution or a well-founded fear of future persecution on account of an anti-gang
political opinion or membership in a particular social group. See Santos-Lemus,
542 F.3d at 745-47. Accordingly, his asylum and withholding of removal claims
fail. See id. at 748.
Hernandez-Aquino’s CAT claim fails because he did not establish a
likelihood of torture by, at the instigation of, or with the consent or acquiescence of
the Guatemalan government. See Azanor v. Ashcroft, 364 F.3d 1013, 1019 (9th
Cir. 2004).
Finally, Hernandez-Aquino’s due process challenge to the BIA’s summary
affirmance fails because the BIA adopted and affirmed the IJ’s decision in its
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entirety, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). See Abebe v.
Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc) (stating that a Burbano
affirmance signifies that the BIA has conducted an independent review of the
record and has determined that its conclusions are the same as those articulated by
the IJ).
PETITION FOR REVIEW DENIED.
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