Jose Guardado v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION JAN 28 2015

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

FOR THE NINTH CIRCUIT

JOSE RENE GUARDADO, No. 12-70593

Petitioner, Agency No. A029-169-067

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

Respondent.

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

Submitted January 21, 2015**

Before: CANBY, GOULD, and N.R. SMITH, Circuit Judges.

Jose Rene Guardado, 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 withholding of removal

and protection under the Convention Against Torture (“CAT”). Our jurisdiction is

*
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).
governed by 8 U.S.C. § 1252. We review for substantial evidence the agency’s

factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006).

We deny in part and dismiss in part the petition for review.

Substantial evidence supports the BIA’s determination that Guardado did not

establish a probability of persecution on account of a protected ground from

anyone if returned to El Salvador. 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 members bears no nexus to a protected

ground”); Molina-Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir. 2002)

(insufficient evidence to establish likelihood of future persecution). We lack

jurisdiction to review Guardado’s imputed political opinion claim because he failed

to raise it to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

Thus, his withholding of removal claim fails.

Substantial evidence also supports the BIA’s denial of CAT relief because

Guardado failed to establish it is more likely than not he would be tortured at the

instigation of or with the acquiescence of the government if returned to El

Salvador. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

This dismissal is without prejudice to petitioner’s seeking prosecutorial

discretion or deferred action from the Department of Homeland Security. See

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Reno v. American-Arab Anti-Discrimination Committee (AADC), 525 U.S. 471,

483-85 (1999) (stating that prosecutorial discretion by the agency can be granted at

any stage, including after the conclusion of judicial review).

PETITION FOR REVIEW DENIED in part; DISMISSED in part.

3 12-70593