Eulalio Pablo-Mendoza v. Eric Holder, Jr.

FILED
NOT FOR PUBLICATION MAY 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
EULALIO PABLO-MENDOZA, No. 11-71046
Petitioner, Agency No. A088-241-871
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2013
Pasadena, California
Before: FERNANDEZ, RAWLINSON, and BYBEE, Circuit Judges.
Petitioner Eulalio Pablo-Mendoza (Pablo-Mendoza) petitions for review of a
decision from the Board of Immigration Appeals (BIA) denying his claims for
asylum, withholding of removal, and protection pursuant to the Convention
Against Torture (CAT). Pablo-Mendoza contends that the BIA’s finding that
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Pablo-Mendoza failed to demonstrate persecution on account of a protected ground
was not supported by substantial evidence.
Pablo-Mendoza now maintains that he was entitled to asylum and
withholding of removal because he was persecuted on account of an imputed
political opinion and membership in a social group composed of witnesses to the
extrajudicial killing of a relative. He also maintains that he was entitled to CAT
relief on account of past torture from death threats made by the police. Because
Pablo-Mendoza failed to raise these issues before the BIA, we lack jurisdiction to
address these unexhausted claims. See Abebe v. Mukasey, 554 F.3d 1203, 1208
(9th Cir. 2009) (en banc) (per curiam) (“[W]hen a petitioner does file a brief, the
BIA is entitled to look to the brief for an explication of the issues that petitioner is
presenting to have reviewed. Petitioner will therefore be deemed to have
exhausted only those issues he raised and argued in his brief before the BIA. . . .”);
see also Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008). These
claims are thus dismissed.
Substantial evidence otherwise supported the BIA’s denial of asylum and
withholding of removal because Pablo-Mendoza failed to demonstrate persecution
on account of a protected ground. The record does not compel a finding that the
police threats or his cousins’ murders were related to Pablo-Mendoza’s Mayan
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heritage. See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1089 (9th Cir. 2013) (en
banc) (“[A] petitioner’s belief that [he] has been persecuted does not alone prove
persecution; rather, [he] must show persecution or a well-founded fear of future
persecution on account of a protected ground. . . .”) (citation omitted). Harassment
and discrimination due to his Mayan ethnicity did not rise to the level of
persecution. See Halim v. Holder, 590 F.3d 971, 975-76 (9th Cir. 2009).
Because of the speculative nature of Pablo-Mendoza’s torture claim, the
record does not compel a finding that Pablo-Mendoza “is more likely than not to be
tortured in [Guatemala]. . . .” Xiao Fei Zheng v. Holder, 644 F.3d 829, 835 (9th
Cir. 2011) (citations omitted); see also Alphonsus v. Holder, 705 F.3d 1031, 1049
(9th Cir. 2013) (“Despite the troubling country reports, the record evidence does
not compel the conclusion that [Pablo-Mendoza] himself will be, more likely than
not, tortured upon his return. . . .”) (emphasis in the original).
PETITION DISMISSED in part and DENIED in part.
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