FILED
NOT FOR PUBLICATION JUN 26 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR MARTINEZ, No. 12-72743
Petitioner, Agency No. A094-314-637
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 25, 2014**
Before: HAWKINS, TALLMAN, and NGUYEN, Circuit Judges.
Edgar Martinez, a native and citizen of El Salvador, petitions pro se 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 Convention Against Torture
*
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). Petitioner’s request for oral
argument is denied.
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence the agency’s factual findings, and de novo claims of due
process violations. Singh v. Holder, 638 F.3d 1264, 1268-69 (9th Cir. 2011). We
deny in part and dismiss in part the petition for review.
Our review is limited to the administrative record and thus we do not
consider evidence included in the opening brief that was not part of the record
before the agency. See Fisher v. INS, 79 F.3d 955, 963-64 (9th Cir. 1996) (en
banc).
The record does not compel the conclusion that Martinez established
extraordinary circumstances to excuse his untimely filed asylum application. See 8
C.F.R § 1208.4(a)(5); Dhital v. Mukasey, 532 F.3d 1044, 1049-50 (9th Cir. 2008).
Accordingly, his asylum claim fails.
Substantial evidence supports the BIA’s finding that Martinez failed to
establish that the harm he suffered in El Salvador from the El Diablo group had a
nexus to a protected ground. See Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000).
Thus, Martinez is not entitled to a presumption of future persecution. See Molina-
Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Further, substantial evidence
supports the agency’s finding that Martinez failed to demonstrate it is more likely
than not he will be persecuted now in El Salvador, more than twenty years after he
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left. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of
future persecution too speculative). We reject Martinez’s contention that the
agency based its decision on evidence that was not in the record. Thus, Martinez’s
withholding of removal claim fails.
Substantial evidence also supports the agency’s denial of CAT relief because
Martinez failed to establish that it is more likely than not he will be tortured by or
with the consent or acquiescence of a government official if he returns to El
Salvador. See Zehatye v. Gonzales, 453 F.3d 1182, 1188 (9th Cir. 2006).
Finally, we lack jurisdiction to consider Martinez’s due process claim that
the translation at his immigration hearing was inadequate, because he did not
exhaust this contention before the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678
(9th Cir. 2004) (court lacks jurisdiction to consider issues that have not been
administratively exhausted).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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