                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 10 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


BANI JAHAXIEL MENDEZ-ROSALES,                    No. 10-72330

               Petitioner,                       Agency No. A099-581-149

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

               Respondent.


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

                             Submitted November 19, 2013**

Before:        CANBY, TROTT, and THOMAS, Circuit Judges.

       Bani Jahaxiel Mendez-Rosales, 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 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”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence factual findings and review de novo due process claims. Zetino v.

Holder, 622 F.3d 1007, 1011-12 (9th Cir. 2010). We deny the petition for review.

      The record does not compel the conclusion that Mendez-Rosales filed his

asylum application within a reasonable period of time after any extraordinary

circumstances. See 8 C.F.R. § 1208.4(a)(5); Husyev v. Mukasey, 528 F.3d 1172,

1181-82 (9th Cir. 2008). Accordingly, we deny the petition as to his asylum claim.

      Mendez-Rosales testified gang members in Guatemala confronted and

robbed him multiple times, and because he has lived in the United States, they

would think he has money and would try to harm him if he returned. Substantial

evidence supports the agency’s determination that Mendez-Rosales failed to

establish past persecution or a likelihood of future persecution on account of a

protected ground. See Zetino, 622 F.3d at 1016 (“An alien’s desire to be free from

harassment by criminals motivated by theft or random violence by gang members

bears no nexus to a protected ground.”). Accordingly, Mendez-Rosales’s

withholding of removal claim fails.

      Substantial evidence also supports the agency’s denial of Mendez-Rosales’s

CAT claim because he failed to establish it is more likely than not he would be




                                          2                                     10-72330
tortured if returned to Guatemala. See Silaya v. Mukasey, 524 F.3d 1066, 1073

(9th Cir. 2008).

      Finally, we reject Mendez-Rosales’s contention that dismissal of his appeal

by a single member of the BIA violated due process. See Falcon Carriche v.

Ashcroft, 350 F.3d 845, 851 (9th Cir. 2003); see also Lata v. INS, 204 F.3d 1241,

1246 (9th Cir. 2000) (requiring error and prejudice to prevail on a due process

claim).

      PETITION FOR REVIEW DENIED.




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