                                                                           FILED
                             NOT FOR PUBLICATION                            APR 24 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



OLEGARIO TOMAS GARCIA-PEREZ,                     No. 09-73661

               Petitioner,                       Agency No. A098-430-638

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



                      On Petition for Review of an Order of the
                          Board of Immigration Appeals

                             Submitted April 17, 2012 **

Before:        LEAVY, PAEZ, and BEA, Circuit Judges.

       Olegario Tomas Garcia-Perez, 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, withholding of removal, and relief 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 review de novo claims of due process

violations, Colmenar v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part

and dismiss in part the petition for review.

      Substantial evidence supports the agency’s finding that Garcia-Perez failed

to establish he suffered harm rising to the level of persecution. See Nagoulko v.

INS, 333 F.3d 1012, 1016-17 (9th Cir. 2003) (record did not compel finding that

Ukrainian Pentecostal Christian who was “teased, bothered, discriminated against

and harassed” suffered from past persecution). Substantial evidence also supports

the agency’s finding that Perez-Garcia failed to established a well-founded fear of

future persecution. See Hakeem v. INS, 273 F.3d 812, 816 (9th Cir. 2001) (“An

applicant’s claim of persecution upon return is weakened, even undercut, when

similarly-situated family members continue to live in the country without incident,

. . . or when the applicant has returned to the country without incident.”) (internal

quotation marks and citation omitted); see also Lolong v. Gonzales, 484 F.3d 1173,

1181 (9th Cir. 2007) (en banc) (ethnic Chinese Christian petitioner did not

establish a pattern or practice of persecution in Indonesia). Accordingly, Garcia-

Perez’s asylum claim fails.


                                           2                                    09-73661
      Because Garcia-Perez did not meet the lower burden of proof for asylum, his

withholding of removal claim necessarily fails. See Zehatye, 453 F.3d at 1190.

      Further, Garcia-Perez fails to raise any substantive challenge to the denial of

his CAT claim. See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir.

1996) (issues not addressed in the argument portion of a brief are deemed waived).

      Finally, we reject Garcia-Perez’s due process claim because he expressly

waived the issue before the IJ and did not exhaust it before the BIA. See Barron v.

Ashcroft, 358 F.3d 647, 678 (9th Cir. 2008).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                          3                                    09-73661
