                                                                            FILED
                             NOT FOR PUBLICATION                            OCT 21 2015

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



                             FOR THE NINTH CIRCUIT


JULIO PEDRO-SIMON, AKA Julio P.                  No. 13-72429
Simon,
                                                 Agency No. A070-639-807
               Petitioner,

 v.                                              MEMORANDUM*

LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted October 14, 2015**

Before:        SILVERMAN, BYBEE, and WATFORD, Circuit Judges.

      Julio Pedro-Simon, a native and citizen of Guatemala, petitions pro se 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 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”). 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). We dismiss in part and deny in part the petition for

review.

      We do not consider new evidence Pedro-Simon attached to his opening

brief. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc) (court’s review

is limited to the administrative record).

      We lack jurisdiction to consider Pedro-Simon’s contentions regarding

asylum, removability, and the IJ’s alleged constitutional violations, because he

failed to raise them to the BIA. See Sola v. Holder, 720 F.3d 1134, 1135-36 (9th

Cir. 2013).

      Substantial evidence supports the BIA’s conclusion that Pedro-Simon’s

experiences in Guatemala did not rise to the level of persecution. See Hoxha v.

Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003) (unfulfilled threats constituted

harassment, not persecution). Substantial evidence also supports the BIA’s

determination that Pedro-Simon failed to demonstrate it is more likely than not that

he will be persecuted in Guatemala. See Nagoulko v. INS, 333 F.3d 1012, 1018

(9th Cir. 2003) (possibility of future persecution too speculative). We do not reach

Pedro-Simon’s contentions regarding the IJ’s particularly serious crime


                                            2                                    13-72429
determination, because the BIA did not rely on this ground in denying his

withholding of removal claim. See Santiago-Rodriguez v. Holder, 657 F.3d 820,

829 (9th Cir. 2011) (review limited to the grounds relied on by the BIA). Thus,

Pedro-Simon’s withholding of removal claim fails.

      Substantial evidence also supports the BIA’s denial of Pedro-Simon’s CAT

claim because he failed to show it is more likely than not that he would be tortured

by or with the consent or acquiescence of the Guatemalan government. See Silaya

v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008). We reject Pedro-Simon’s

contention that the agency failed to properly consider record evidence. Thus, his

CAT claim fails.

      Finally, according to respondent, Pedro-Simon was removed from the

United States on January 13, 2014. Thus, we deny his motion for stay of removal

as moot.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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