Rosario Quieju De Fernandez v. Eric H. Holder Jr.

FILED
NOT FOR PUBLICATION JUN 29 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROSARIO REYNOSO QUIEJU DE No. 08-72895
FERNANDEZ; et al.,
Agency Nos. A099-447-928
Petitioners, A099-447-929
A099-447-930
v.

ERIC H. HOLDER, Jr., Attorney General, MEMORANDUM *

Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted June 15, 2011 **

Before: CANBY, O'SCANNLAIN, and FISHER, Circuit Judges.

Rosario Quieju De Fernandez and her family, natives and citizens of

Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”)

order dismissing their appeal from an immigration judge’s (“IJ”) decision denying

their applications for asylum, withholding of removal, and relief under the

*
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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for substantial evidence the BIA’s findings of fact, INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992), and review de novo due process

claims, Ibarra-Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006). We deny in

part and dismiss in part the petition for review.

The evidence does not compel the conclusion that De Fernandez established

extraordinary circumstances excusing her untimely asylum application. See

8 C.F.R. § 1208.4(a)(4), (5); Ramadan v. Gonzales, 479 F.3d 646, 656-58 (9th Cir.

2007) (per curiam). Accordingly, De Fernandez’s asylum claim fails. Because she

is not eligible for asylum, we do not reach her humanitarian asylum claim.

Substantial evidence supports the BIA’s determination that De Fernandez

failed to establish that she was or would be persecuted on account of any protected

ground. See Elias-Zacarias, 502 U.S. at 481-84; Molina-Morales v. INS, 237 F.3d

1048, 1051-52 (9th Cir. 2001) (personal retribution is not persecution on account

of a protected ground). Accordingly, De Fernandez’s withholding of removal

claim fails.

Substantial evidence also supports the BIA’s denial of De Fernandez’s CAT

claim because she failed to show it is more likely than not that she would be

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tortured by or with the acquiescence of the government if she is returned to

Guatemala. See Arteaga v. Mukasey, 511 F.3d 940, 948–49 (9th Cir. 2007).

We lack jurisdiction to review petitioners’ claim that the IJ violated their due

process rights because they did not raise the issue before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (court lacks jurisdiction to consider

claims that have not been exhausted before the agency). Petitioners’ claim that the

BIA denied their due process rights fails because petitioners point to no error by

the BIA. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and

prejudice to prevail in due process claim).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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