FILED
NOT FOR PUBLICATION AUG 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MATEO CRISTOBAL PASCUAL- No. 09-70096
JOAQUIN, a.k.a. Mateo Cristobal Pascual,
Agency No. A070-938-186
Petitioner,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Mateo Christobal Pascual-Joaquin, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
dismissing his appeal from an immigration judge’s decision denying his
application for asylum, withholding of removal, and protection 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, Wakkary v. Holder, 558 F.3d 1049,
1056 (9th Cir. 2009), and we dismiss in part and deny in part the petition for
review.
We lack jurisdiction to review Pascual-Joaquin’s claim that he established
eligibility for asylum because he failed to raise this claim to the BIA. See Abebe v.
Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (only issues
raised and argued in a petitioner’s brief before the BIA will be deemed exhausted
when a brief is filed).
With respect to withholding of removal, Pascual-Joaquin concedes he did
not suffer past persecution. Pascual-Joaquin failed to establish a clear probability
of future persecution because the evidence in this case indicates only that Mayans
in Guatemala are subject to discrimination, see Ghaly v. INS, 58 F.3d 1425, 1431
(9th Cir. 1995) (“persecution is an extreme concept” and “discrimination is
insufficient”) (citation and internal quotation omitted), and the harm Pascual-
Joaquin fears from criminal groups is not on account of a protected ground, see
Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[a]n alien’s desire to be
free from harassment by criminals motivated by theft or random violence by gang
2 09-70096
members bears no nexus to a protected ground”). Accordingly, substantial
evidence supports the agency’s denial of withholding of removal.
Finally, substantial evidence supports the agency’s denial of Pascual-
Joaquin’s CAT claim, because he failed to show it is more likely than not that he
will be tortured if returned to Guatemala. See Wakkary, 558 F.3d at 1067-68.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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