FILED
NOT FOR PUBLICATION FEB 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GILBERTO JESUS; No. 07-74112
JOAQUIN ANGELINA MIGUEL,
Agency Nos. A098-175-277
Petitioners, A098-175-278
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Gilberto Jesus and Joaquin Angelina Miguel, natives and citizens of
Guatemala, petition for review of a Board of Immigration Appeals’ (“BIA”) order
dismissing their appeal from an immigration judge’s (“IJ”) decision denying their
application for asylum, withholding of removal, relief under the Convention
*
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).
Against Torture (“CAT”), and cancellation of removal. Our jurisdiction is
governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings.
INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). We deny in part and
dismiss in part the petition for review.
Petitioners do not challenge the IJ’s dispositive finding that their application
for asylum was untimely. Accordingly, their asylum claim fails.
We lack jurisdiction to review Jesus’s contention that he suffered past
persecution in the form of emotional and psychological harm because he did not
raise that argument to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004). With respect to future fear, Jesus’s testimony that guerrillas attempted to
recruit his father because his father was in good health does not establish Jesus
would be persecuted on account of a protected ground. See Elias-Zacarias, 502
U.S. at 483; Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (to be eligible
for withholding of removal, the Real ID Act requires a protected ground to be “one
central reason” for the persecution). In addition, substantial evidence supports the
agency’s finding that Jesus’s objective fear of persecution is mitigated by changed
country conditions in Guatemala. See Tamang v. Holder, 598 F.3d 1083, 1093
(9th Cir. 2010). Accordingly, Jesus’s claim for withholding of removal fails.
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Substantial evidence supports the agency’s denial of CAT relief because
Jesus failed to establish that it is more likely than not that he will be tortured if
returned to Guatemala. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.
2009).
We lack jurisdiction to review the agency’s discretionary denial of
cancellation of removal. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th
Cir. 2005) (the court lacks jurisdiction to review the agency’s discretionary
determination that a petitioner did not establish an exceptional and extremely
unusual hardship).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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