Angel Diego Pena v. Eric Holder, Jr. ( 2013 )

FILED
NOT FOR PUBLICATION FEB 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ANGEL DIEGO PEÑA, No. 10-72616
Petitioner, Agency No. A072-673-543
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 11, 2013 **
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Angel Diego Peña, 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,
*
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), so we reject the request for
oral argument.
withholding of removal, and protection under the Convention Against Torture
(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for
substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and we
deny in part and dismiss in part the petition for review.
Substantial evidence supports the BIA’s denial of Diego Peña’s asylum
claim because Diego Peña failed to establish the harm he suffered or fears is on
account of a protected ground. See id. at 482-84; see also Molina-Morales v. INS,
237 F.3d 1048, 1052 (9th Cir. 2001) (personal retribution is not persecution on
account of a protected ground). Accordingly, his asylum and withholding of
removal claims fail. See Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir. 2005).
Further, substantial evidence supports the agency’s denial of CAT relief
because Diego Peña failed to establish a likelihood of being tortured in Guatemala.
See Santos-Lemus v. Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008).
We lack jurisdiction to consider Diego Peña’s humanitarian asylum claim
because he did not exhaust it before the BIA. See Segura v. Holder, 605 F.3d
1063, 1066 (9th Cir. 2010) (broad statements in notice of appeal and brief were
insufficient to put the BIA on notice of petitioner’s claim). Further, we decline to
consider Diego Peña’s contentions regarding the BIA’s citation to incorrect and
excluded evidence because he raised them for the first time in his reply brief. See
2 10-72616
Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003). Finally, in
light of the agency’s nexus finding, the BIA did not err by not addressing Diego
Peña’s contentions regarding the IJ’s misstatements to the expert and problems
with the transcript.
PETITION FOR REVIEW DENIED in part; DISMISSED in part.
3 10-72616