NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 28 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN JOSE HERRERA-CABEZA, No. 12-73017
Petitioner, Agency No. A072-131-472
v.
MEMORANDUM*
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Juan Jose Herrera-Cabeza, a native and citizen of El Salvador, 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 and
withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review for substantial evidence the agency’s factual findings, applying the
standards governing adverse credibility determinations created by the REAL ID
Act. Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010). We review for
abuse of discretion the agency’s denial of a motion to remand. Movsisian v.
Ashcroft, 395 F.3d 1095, 1098 (9th Cir. 2005). We deny the petition for review.
We lack jurisdiction to consider Cabeza’s past persecution claim because he
did not raise it to the agency. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th
Cir. 2004) (no jurisdiction over legal claims not presented in administrative
proceedings below). Further, Herrera-Cabeza does not raise any challenge to the
agency’s dispositive finding that he failed to demonstrate a well-founded fear of
persecution, where he returned to El Salvador and lived without harm for over
three years. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996)
(issues not specifically raised and argued in a party’s opening brief are waived);
see also Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“[a]n applicant’s claim
of persecution upon return is weakened, even undercut, . . . when the applicant has
returned to the country without incident.”), superseded by statute on other grounds
as stated in Ramadan v. Gonzales, 479 F.3d 646, 650 (9th Cir. 2007). Thus, we
deny the petition as to Herrera-Cabeza’s asylum claim.
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Because Herrera-Cabeza failed to establish eligibility for asylum, his
withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d
1182, 1190 (9th Cir. 2006).
Finally, the BIA did not abuse its discretion in denying Herrera-Cabeza’s
request to remand where he did not establish prima facie eligibility for relief. See
Ochoa-Amaya v. Gonzales, 479 F.3d 989, 992 (9th Cir. 2007) (it is the petitioner’s
burden to establish prima facie eligibility for the relief sought).
PETITION FOR REVIEW DENIED.
3 12-73017