                                                                            FILED
                             NOT FOR PUBLICATION                             FEB 13 2013

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




                              FOR THE NINTH CIRCUIT



ANGEL DIEGO PEÑA,                                 No. 10-72616

               Petitioner,                        Agency No. A072-673-543

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

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Angel Diego Peña, 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,




          *
             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), so we reject the request for
oral argument.
withholding of removal, and protection under the Convention Against Torture

(“CAT”). Our jurisdiction is governed by 8 U.S.C. § 1252. We review for

substantial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992), and we

deny in part and dismiss in part the petition for review.

      Substantial evidence supports the BIA’s denial of Diego Peña’s asylum

claim because Diego Peña failed to establish the harm he suffered or fears is on

account of a protected ground. See id. at 482-84; see also Molina-Morales v. INS,

237 F.3d 1048, 1052 (9th Cir. 2001) (personal retribution is not persecution on

account of a protected ground). Accordingly, his asylum and withholding of

removal claims fail. See Ochoa v. Gonzales, 406 F.3d 1166, 1172 (9th Cir. 2005).

      Further, substantial evidence supports the agency’s denial of CAT relief

because Diego Peña failed to establish a likelihood of being tortured in Guatemala.

See Santos-Lemus v. Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008).

      We lack jurisdiction to consider Diego Peña’s humanitarian asylum claim

because he did not exhaust it before the BIA. See Segura v. Holder, 605 F.3d

1063, 1066 (9th Cir. 2010) (broad statements in notice of appeal and brief were

insufficient to put the BIA on notice of petitioner’s claim). Further, we decline to

consider Diego Peña’s contentions regarding the BIA’s citation to incorrect and

excluded evidence because he raised them for the first time in his reply brief. See


                                           2                                   10-72616
Cedano-Viera v. Ashcroft, 324 F.3d 1062, 1066 n.5 (9th Cir. 2003). Finally, in

light of the agency’s nexus finding, the BIA did not err by not addressing Diego

Peña’s contentions regarding the IJ’s misstatements to the expert and problems

with the transcript.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                         3                                   10-72616
