FILED
NOT FOR PUBLICATION SEP 20 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
FRANCISCO MARCOS-FRANCISCO, No. 10-73885
Petitioner, Agency No. A073-219-526
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted September 10, 2012 **
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Francisco Marcos-Francisco, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from the immigration judge’s decision denying his application for asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
*
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).
Our jurisdiction is governed by 8 U.S.C. § 1252. We review for substantial
evidence the agency’s factual findings and review de novo its legal conclusions.
Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the BIA’s finding that Marcos-Francisco has
not established past persecution because the two threats he received from guerrillas
do 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.”) (internal quotations omitted). Substantial
evidence also supports the BIA’s finding that Marcos-Francisco failed to establish
a well-founded fear of persecution. See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th
Cir. 2003) (possibility of future persecution too speculative). Therefore, Marcos-
Francisco’s asylum claims fails.
Because Marcos-Francisco failed to establish eligibility for asylum, he
necessarily failed to meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
Substantial evidence also supports the agency’s finding that Marcos-
Francisco has not established that it is more likely than not he will be tortured by
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or with the consent or acquiescence of a government official. See Santos-Lemus,
542 F.3d at 747-48. Accordingly, Marcos-Francisco’s CAT claim fails.
Marcos-Francisco has not overcome the presumption that the agency
considered all of the evidence in the record. See Larita-Martinez v. INS, 220 F.3d
1092, 1095-96 (9th Cir. 2000).
Additionally, Marcos-Francisco contends the BIA applied the incorrect legal
standard to his cancellation of removal claim by failing to consider the hardship
factors cumulatively and by failing to apply controlling precedent to the
determination. The record belies these contentions. Because the BIA applied the
correct legal standard, and Marcos-Francisco does not put forth a colorable legal or
constitutional claim, we lack jurisdiction to review the BIA’s discretionary
hardship determination. See Mendez-Castro v. Mukasey, 552 F.3d 975, 979-80
(9th Cir. 2009).
Marcos-Francisco’s motion to proceed in forma pauperis is granted. The
Clerk shall amend the docket to reflect this status.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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