FILED
NOT FOR PUBLICATION APR 24 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
OLEGARIO TOMAS GARCIA-PEREZ, No. 09-73661
Petitioner, Agency No. A098-430-638
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2012 **
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Olegario Tomas Garcia-Perez, 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 (“IJ”) decision denying his application for
asylum, withholding of removal, and relief 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).
(“CAT”). Our jurisdiction is 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), and we review de novo claims of due process
violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part
and dismiss in part the petition for review.
Substantial evidence supports the agency’s finding that Garcia-Perez failed
to establish he suffered harm rising to the level of persecution. See Nagoulko v.
INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003) (record did not compel finding that
Ukrainian Pentecostal Christian who was “teased, bothered, discriminated against
and harassed” suffered from past persecution). Substantial evidence also supports
the agency’s finding that Perez-Garcia failed to established a well-founded fear of
future persecution. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“An
applicant’s claim of persecution upon return is weakened, even undercut, when
similarly-situated family members continue to live in the country without incident,
. . . or when the applicant has returned to the country without incident.”) (internal
quotation marks and citation omitted); see also Lolong v. Gonzales, 484 F.3d 1173,
1181 (9th Cir. 2007) (en banc) (ethnic Chinese Christian petitioner did not
establish a pattern or practice of persecution in Indonesia). Accordingly, Garcia-
Perez’s asylum claim fails.
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Because Garcia-Perez did not meet the lower burden of proof for asylum, his
withholding of removal claim necessarily fails. See Zehatye, 453 F.3d at 1190.
Further, Garcia-Perez fails to raise any substantive challenge to the denial of
his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.
1996) (issues not addressed in the argument portion of a brief are deemed waived).
Finally, we reject Garcia-Perez’s due process claim because he expressly
waived the issue before the IJ and did not exhaust it before the BIA. See Barron v.
Ashcroft, 358 F.3d 647, 678 (9th Cir. 2008).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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