                                                                           FILED
                             NOT FOR PUBLICATION                            APR 23 2013

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




                             FOR THE NINTH CIRCUIT



BERNARDO CADENA MERCADO,                         No. 12-72965

               Petitioner,                       Agency No. A078-019-680

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

               Respondent.



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

                             Submitted April 16, 2013 **

Before:        CANBY, IKUTA, and WATFORD, Circuit Judges.

       Bernardo Cadena Mercado, a native and citizen of Mexico, petitions pro se

for review of the Board of Immigration Appeals’ order dismissing his appeal from

an immigration judge’s (“IJ”) decision denying his application for deferral of

removal under the Convention Against Torture (“CAT”). Our jurisdiction is


          *
             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).
governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings.

Kumar v. Gonzales, 444 F.3d 1043, 1049 (9th Cir. 2006). We deny in part and

dismiss in part the petition for review.

      Substantial evidence supports the agency’s findings that Cadena Mercado

failed to establish that it is more likely than not he will be tortured because he has

not suffered past harm rising to the level of torture, nor has he demonstrated he

would be unable to relocate. See Kumar, 444 F.3d at 1055 (being beaten by police

officers with wooden sticks and leather belts was abuse but did not amount to past

torture); Hasan v. Ashcroft, 380 F.3d 1114, 1123 (9th Cir. 2004) (petitioner has the

burden to show internal relocation to avoid torture is not possible). Accordingly,

Cadena Mercado’s claim for deferral of removal under CAT fails.

      We lack jurisdiction to review Cadena Mercado’s unexhausted due process

claims that the IJ failed to advise him that the proceedings were governed by the

Real ID Act and failed to develop the record adequately. See Barron v. Ashcroft,

358 F.3d 674, 678 (9th Cir. 2004).

      The court considered all the arguments Cadena Mercado raised in his brief

filed on March 26, 2013. Thus, we deny as moot Cadena Mercado’s motion to

accept his March 26, 2013, brief as the opening brief.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.


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