FILED
NOT FOR PUBLICATION MAR 20 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SERGIO ANTONIO DIAZ, No. 11-70053
Petitioner, Agency No. A072-511-043
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 12, 2013 **
Before: PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.
Sergio Antonio Diaz, a native and citizen of Guatemala, petitions pro se 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 protection 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 deny in part and dismiss in part the petition
for review.
We do not address Diaz’s credibility contentions, because the agency did not
make an adverse credibility determination.
Substantial evidence supports the BIA’s findings that the threats Diaz
received in Guatemala do not rise to the level of persecution, see Lim v. INS, 224
F.3d 929, 936-37 (9th Cir.2000), and that Diaz failed to establish he was threatened
on account of a protected ground, see INS v. Elias-Zacarias, 502 U.S. 478, 482-83
(1992); Pedro-Mateo v. INS, 224 F.3d 1147, 1150-51 (9th Cir. 2000). Further, we
lack jurisdiction to review the IJ’s finding that Diaz failed to show the government
of Guatemala was unwilling or unable to protect him from gang violence, because
Diaz failed to challenge the finding to the BIA. See Barron v. Ashcroft, 358 F.3d
674, 678 (9th Cir. 2004). We also lack jurisdiction over Diaz’s newly raised
contentions, because he failed to raise them to the BIA. See id. Accordingly,
Diaz’s asylum claim fails.
Because Diaz failed to meet the lower burden of proof for asylum, his claim
for withholding of removal necessarily fails. See Zehatye, 453 F.3d at 1190.
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Finally, substantial evidence supports the agency’s denial of Diaz’s CAT
claim because Diaz failed to show it is more likely than not he will be tortured with
the consent or acquiescence of the government if returned to Guatemala. See
Santos-Lemus v. Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 11-70053