Estuardo Carrato Cuevas v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JUL 29 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTUARDO CARRATO CUEVAS, No. 12-73767

Petitioner, Agency No. A087-682-763

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

Respondent.

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

Submitted July 22, 2014**

Before: GOODWIN, CANBY, and CALLAHAN, Circuit Judges.

Estuardo Carrato Cuevas, 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 withholding of

removal, protection under the Convention Against Torture (“CAT”), and voluntary

*
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).
departure. Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence the factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056

(9th Cir. 2009). We deny in part and dismiss in part the petition for review.

Substantial evidence supports the agency’s finding that the anonymous

letters demanding money and threatening death that Carrato Cuevas’ family

received did not constitute persecution. See Nahrvani v. Gonzales, 399 F.3d 1148,

1153-54 (9th Cir. 2005); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)

(unfulfilled threats “constitute[d] harassment rather than persecution”). The BIA

did not rely on a lack of corroboration in making this finding.

Further, substantial evidence supports the agency’s finding that Carrato

Cuevas failed to establish it is more likely than not that he will be persecuted in

Guatemala considering his mother and siblings remain in Guatemala unharmed.

See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“[a]n applicant’s claim of

persecution upon return is weakened, even undercut, considering similarly-situated

family members continue to live in the country without incident”), superseded by

statute on other grounds as stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th

Cir. 2007). We reject Carrato Cuevas’s contention that the BIA’s decision

contained significant errors of analysis. See Lata v. INS, 204 F.3d 1241, 1246 (9th

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Cir. 2000) (requiring error to prevail on a due process claim). Thus, Carrato

Cuevas’s withholding of removal claim fails.

Substantial evidence supports the BIA’s denial of Carrato Cuevas’ CAT

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

at the instigation of or with the consent or acquiescence of a member of the

Guatemalan government. See Wakkary v. Holder, 558 F.3d 1056, 1067-68 (9th

Cir. 2009).

Finally, with respect to voluntary departure, we do not address Carrato

Cuevas’s challenge to the IJ’s finding. See Hosseini v. Gonzales, 471 F.3d 953,

957 (9th Cir. 2006) (Where BIA conducts its own review of evidence and law

rather than adopting the IJ’s decision, this court’s “review is limited to the BIA’s

decision, except to the extent that the IJ’s opinion is expressly adopted.”) (internal

quotation marks omitted). We lack jurisdiction to review the BIA’s discretionary

denial of voluntary departure. See 8 U.S.C. § 1252(a)(2)(B)(i); see also Gil v.

Holder, 651 F.3d 1000, 1006 (9th Cir. 2011) (court lacks jurisdiction to review

discretionary denial of voluntary departure where no legal question was raised).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

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