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NOT FOR PUBLICATION FEB 24 2011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
JOSE LUIS CHALE-RODRIGUEZ, No. 08-70775
Petitioner, Agency No. A098-402-724
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.
Jose Luis Chale-Rodriguez, native and citizen of Peru, 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 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. We review for substantial evidence
factual findings, INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992), and we
review de novo due process claims, Vasquez-Zavala v. Ashcroft, 324 F.3d 1105,
1107 (9th Cir. 2003). We deny the petition for review.
The record does not compel the conclusion that Chale-Rodriguez’s untimely
asylum application is excused by extraordinary circumstances. See 8 U.S.C.
§ 1158(a)(2)(D); Toj-Culpatan v. Holder, 612 F.3d 1088, 1091 (9th Cir. 2010) (per
curiam). We lack jurisdiction to consider Chale-Rodriguez’s contention that his
untimely asylum application is excused by changed circumstances because it is
unexhausted. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Thus, we
further reject Chale-Rodriguez’s contention that the agency violated his due
process rights by not considering changed circumstances. See Lata v. INS, 204
F.3d 1241, 1246 (9th Cir. 2006) (petitioner must show error and prejudice to
establish a due process violation). Accordingly, Chale-Rodriguez’s asylum claim
fails.
Substantial evidence supports the agency’s finding that Chale-Rodriguez
failed to demonstrate past persecution based on the threats, harassment, and
robbery Chale-Rodriguez and his family suffered. See Nagoulko v. INS, 333 F.3d
1012, 1016-18 (9th Cir. 2003). In addition, substantial evidence supports the
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agency’s finding that Chale-Rodriguez failed to show a clear probability of future
persecution from the Sendero Luminoso because, while his similarly situated father
has received threats, the Sendero Luminoso has not harmed his father. See Lim v.
INS, 224 F.3d 929, 938 (9th Cir. 2000). Accordingly, Chale-Rodriguez’s
withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Chale-Rodriguez has not established a likelihood of torture by or with the
acquiescence of the Peruvian government. See Silaya v. Mukasey, 524 F.3d 1066,
1073 (9th Cir. 2008).
PETITION FOR REVIEW DENIED.
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