NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS EMILIO POLANCO-HERNANDEZ, No. 18-70638
Petitioner, Agency No. A200-629-924
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 17, 2019**
Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.
Luis Emilio Polanco-Hernandez, 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 Ninth Circuit Rule 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 questions
of law de novo, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to
the extent that deference is owed to the BIA’s interpretation of the governing
statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004).
We review for substantial evidence the agency’s factual findings. Garcia-Milian v.
Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). We dismiss in part and deny in part
the petition for review.
We lack jurisdiction to consider Polanco-Hernandez’s contentions regarding
his political opinion and the timeliness of his asylum application because he failed
to raise them below. See Barron v. Ashcroft, 358 F.3d 674, 677-78 (9th Cir. 2004)
(court lacks jurisdiction to review claims not presented to the agency).
As to withholding of removal, substantial evidence supports the agency’s
determination that the threats Polanco-Hernandez received from gang members in
1999 and 2000 did not rise to the level of persecution. See Lim v. INS, 224 F.3d
929, 936 (9th Cir. 2000) (“Threats standing alone . . . constitute past persecution in
only a small category of cases, and only when the threats are so menacing as to
cause significant actual ‘suffering or harm.’”); Nahrvani v. Gonzales, 399 F.3d
1148, 1153-54 (9th Cir. 2005) (record did not compel the conclusion that
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petitioner’s past harm constituted persecution).
The agency did not err in finding that Polanco-Hernandez failed to establish
membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125,
1131 (9th Cir. 2016) (in order to demonstrate membership in a particular group,
“[t]he applicant must ‘establish that the group is (1) composed of members who
share a common immutable characteristic, (2) defined with particularity, and (3)
socially distinct within the society in question’” (quoting Matter of M-E-V-G-, 26
I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence supports the agency’s
determination that, even if Polanco-Hernandez stated a cognizable social group of
family members as landowners, he failed to establish a fear of future persecution
on account of a protected ground. See Ayala v. Holder, 640 F.3d 1095, 1097 (9th
Cir. 2011) (even if membership in a particular social group is established, an
applicant must still show that “persecution was or will be on account of his
membership in such group” (emphasis in original)). Thus, Polanco-Hernandez’s
withholding of removal claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Polanco-Hernandez failed to show it is more likely than not he would be tortured
by or with the consent or acquiescence of the government of Guatemala. See Aden
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v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009).
We reject Polanco-Hernandez’s contentions regarding his credibility and
that the agency did not consider his evidence.
PETITION FOR REVIEW DISMISSED in part; DENIED in part.
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