Evelio Sandova-Grijalva v. Eric H. Holder Jr. , 428 F. App'x 778 ( 2011 )

FILED
NOT FOR PUBLICATION APR 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EVELIO SANDOVA-GRIJALVA, No. 08-71103
Petitioner, Agency No. A070-946-325
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 5, 2011 **
Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.
Evelio Sandova-Grijalva, 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 (“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. Santos-Lemus v. Mukasey, 542
F.3d 738, 742 (9th Cir. 2008). We deny in part and dismiss in part the petition for
review.
Even if Sandova-Grijalva’s asylum application was timely, substantial
evidence supports the agency’s finding that his incident with the guerrillas did not
rise to the level of persecution. See Gu v. Gonzales, 454 F.3d 1014, 1019-21 (9th
Cir. 2006) (brief detention, beating and interrogation did not compel a finding of
past persecution). In addition, given the changed country circumstances in
Guatemala, and Sandova-Grijalva’s inability to explain why anyone would be
interested in him now, substantial evidence supports the agency’s conclusion that
petitioner has not established a well-founded fear of persecution. See Nagoulko v.
INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (“[T]he IJ and the BIA are entitled to
rely on all relevant evidence in the record, including a State Department report, in
considering whether the petitioner has demonstrated there is good reason to fear
future persecution.”). Therefore, his asylum claim fails.
Because Sandova-Grijalva failed to establish eligibility for asylum, he
necessarily fails to meet the more stringent standard for withholding of removal.
See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
08-71103
Additionally, substantial evidence supports the BIA’s finding that Sandova-
Grijalva failed to show it is more likely than not he will be tortured if returned to
Guatemala. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).
Accordingly, his CAT claim fails.
Finally, because Sandova-Grijalva did not exhaust his due process claim,
this court lacks jurisdiction to review it. See Barron v. Ashcroft, 358 F.3d 674,
677-78 (9th Cir. 2004) (alleged error of lack of opportunity to present case was
procedural in nature and required to be exhausted).
PETITION FOR REVIEW DENIED in part; DISMISSED in
part.
08-71103