                                                                           FILED
                             NOT FOR PUBLICATION                            SEP 05 2013

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



                             FOR THE NINTH CIRCUIT


SERGIO ARMANDO MARTINEZ-                         No. 12-71584
COTA,
                                                 Agency No. A200-704-319
               Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted May 20, 2013**

Before:        HUG, FARRIS, and LEAVY, Circuit Judges.

       Petitioner Sergio Armando Martinez-Cota, a native and citizen of Mexico,

petitions for review of a decision from the Board of Immigration Appeals (“BIA”)

in which the BIA dismissed his appeal from the immigration judge’s (“IJ”) denial



          *
             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).
of relief in the form of asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”).

      Where the BIA conducts its own review of the evidence and law rather than

adopting the IJ’s decision, this court’s “review is limited to the BIA’s decision,

except to the extent that the IJ’s opinion is expressly adopted.” Hosseini v.

Gonzales, 471 F.3d 953, 957 (9th Cir. 2006) (internal quotation marks omitted).

We review legal questions de novo and factual findings for substantial evidence.

Lopez-Cardona v. Holder, 662 F.3d 1110, 1111 (9th Cir. 2011). A denial of

asylum, withholding of removal, or protection under CAT is reviewed for

substantial evidence. Sinha v. Holder, 564 F.3d 1015, 1020, 1025 (9th Cir. 2009).

We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition for

review.1

      We uphold the agency’s determination that Martinez-Cota’s application for

asylum is time-barred. He failed to file his application within a year of his last

entry into the United States. See 8 U.S.C. § 1158(a)(2)(B). Moreover, substantial

evidence supports the agency’s conclusion that a warrant issued in Mexico in 2011

for Martinez-Cota’s arrest did not constitute changed circumstances that would



      1
         Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.

                                           2
excuse his failure to timely file. See 8 U.S.C. § 1158(a)(2)(D); Ramadan v.

Gonzales, 479 F.3d 646, 657 (9th Cir. 2007).

      Substantial evidence supports the agency’s conclusion that Martinez-Cota

failed to satisfy his burden of proof for asylum or withholding of removal. The

agency found that an incident in 1995 in which Martinez-Cota was shot by police

officers did not constitute past persecution or establish a well-founded fear of

future persecution because the evidence did not show that the shooting was

intentional or based on retaliatory motive. The record does not compel a contrary

conclusion. See Kumar v. Gonzales, 439 F.3d 520, 524 (9th Cir. 2006) (upholding

the IJ’s determination that an incident of harm was an accident and therefore did

not constitute persecution).

      Martinez-Cota’s claim that he established past persecution based on threats

from the police and occasional arrests is unavailing. None of these incidents rise to

the level of persecution, especially where neither the threats nor arrests caused

Martinez-Cota any suffering or harm. See Mendez-Gutierrez v. Ashcroft, 340 F.3d

865, 869 n.6 (9th Cir. 2003) (concluding that unspecified threats and occasional

incidents of detention and interrogation did not rise to the level of persecution);

Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (holding that threats against an alien




                                           3
and his family did not constitute persecution where they remained in the area and

were not harmed or even confronted by the NPA).

      Moreover, the threats and arrests do not establish a well-founded fear of

future persecution, especially in light of the fact that Martinez-Cota voluntarily

returned to Mexico on multiple occasions. See Loho v. Mukasey, 531 F.3d 1016,

1017-18 (9th Cir. 2008) (“It is well established in this court that an alien’s history

of willingly returning to his or her home country militates against a finding of past

persecution or a well-founded fear of future persecution.”). Martinez-Cota’s claim

is further weakened by the fact that the police commander who threatened him is

now deceased. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988)

(per curiam) (holding that an alien failed to establish a well-founded fear of

persecution where the person who had threatened the alien was deceased).

      Substantial evidence supports the agency’s determination that Martinez-Cota

failed to establish a well-founded fear of future persecution based on the 2011

arrest warrant. The record does not compel a finding that the warrant was issued

for an improper purpose, and ordinary criminal prosecution does not constitute

persecution or give rise to a well-founded fear of persecution. See Lin v. Holder,

610 F.3d 1093, 1097 (9th Cir. 2010); Singh v. Gonzales, 439 F.3d 1100, 1112 (9th

Cir. 2006) (“where there is evidence of a legitimate prosecutorial purpose, foreign


                                           4
authorities enjoy much latitude in vigorously enforcing their laws”). In addition,

Martinez-Cota has failed to provide evidence that would compel the conclusion

that the warrant was connected to the 1995 shooting or police threats and arrests.

See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (holding that an alien’s

speculative fear of future harm was insufficient to compel a finding of a well-

founded fear of future persecution where the alien submitted no specific evidence

to support her claims).

      Therefore, substantial evidence supports the agency’s finding that Martinez-

Cota failed to meet his burden of proof to qualify for asylum. See Kumar, 439

F.3d at 524-25. Because Martinez-Cota cannot meet the lesser burden of proof of

asylum, he necessarily fails to meet the higher burden of proof to qualify for

withholding of removal. See id. at 525.

      Finally, the agency’s denial of protection under CAT is supported by

substantial evidence because the record does not compel a finding that it is more

likely than not that Martinez-Cota will be tortured in Mexico. See Zheng v.

Holder, 644 F.3d 829, 835-36 (9th Cir. 2011).

      Martinez-Cota’s remaining contentions are meritless.

      PETITION FOR REVIEW DENIED.




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