Maria Gramajo-Santos v. Eric H. Holder Jr. , 444 F. App'x 198 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 21 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
MARIA SILVA GRAMAJO-SANTOS, No. 09-70187
Petitioner, Agency No. A072-142-337
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
Maria Silva Gramajo-Santos, a native and citizen of Guatemala, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing her appeal
from an immigration judge’s (“IJ”) decision denying her application for asylum
and withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We
*
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).
review de novo questions of law and for substantial evidence factual findings. See
Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We deny in part and
dismiss in part the petition for review.
Substantial evidence supports the agency’s determination that Gramajo-
Santos failed to establish harm rising to the level of persecution. See Lim v. INS,
224 F.3d 929, 936-37 (9th Cir. 2000) (mail and telephone death threats to
petitioner on NPA death list did not compel a finding of past persecution).
Substantial evidence also supports the agency’s conclusion that Gramajo-Santos
failed to establish that the guerrillas pursued her on account of a protected ground,
see INS v. Elias-Zacarias, 502 U.S. 478, 481-84 (1992), and did not establish any
connection to the incidents of harm her family members experienced, see Wakkary,
558 F.3d at 1060 (harm to petitioner’s associates was not “closely tied to”
petitioner himself) (internal quotation and citation omitted). Accordingly, her
asylum and withholding of removal claims fail.
Gramajo-Santos’s contention that the BIA erred in summarily upholding the
IJ’s decision is belied by the record, as is her contention that the BIA failed to
address the IJ’s conduct of her hearing. Further, she has not overcome the
presumption that the BIA reviewed the record. See Fernandez v. Gonzales, 439
F.3d 592, 603 (9th Cir. 2006).
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Finally, with respect to due process, we reject Gramajo-Santos’s contention
that the IJ’s questioning prevented her from fully presenting her case. See Halaim
v. INS, 358 F.3d 1128, 1137 (9th Cir. 2004) (interruption of petitioner’s testimony
did not rise to the level of intimidation or advocacy for the agency); Lata v. INS,
204 F.3d 1241, 1246 (9th Cir. 2000) (requiring both error and “substantial
prejudice” to prevail on a due process challenge to deportation proceedings). We
lack jurisdiction to review Gramajo-Santos’s claim regarding the presentation of
witnesses because she failed to raise this issue to the BIA. See Barron v. Ashcroft,
358 F.3d 674, 678 (9th Cir. 2004) (no jurisdiction over claims not presented
below). We also reject Gramajo-Santos’s summary contention that the delay in
processing her case constituted a denial of due process because we lack jurisdiction
over the Attorney General’s decision to “commence proceedings.” See Jimenez-
Angeles v. Ashcroft, 291 F.3d 594, 598-99 (9th Cir. 2002) (construing 8 U.S.C.
§ 1252(g) and concluding court lacked jurisdiction over petitioner’s claim that the
INS had to immediately initiate deportation proceedings against her when she
presented herself to the agency). Gramajo-Santos has not otherwise presented a
colorable due process claim regarding the delay in her case. See Torres-Aguilar v.
INS, 246 F.3d 1267, 1271 (9th Cir. 2001).
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
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