                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 28 2011

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




                             FOR THE NINTH CIRCUIT



MAURICIO GIRALDO RIOS,                           No. 08-71592

               Petitioner,                       Agency No. A099-053-075

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

               Respondent.



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

                             Submitted March 8, 2011 **

Before:        FARRIS, O’SCANNLAIN, and BYBEE, Circuit Judges,

       Mauricio Giraldo Rios, a native and citizen of Colombia, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order denying his motion to

remand and dismissing his appeal from the immigration judge’s decision denying

his application for asylum, withholding of removal, and protection under the


          *
             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).
Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C.

§ 1252. We review for substantial evidence the agency’s factual findings and

review its legal conclusions de novo. Santos-Lemus v. Mukasey, 542 F.3d 738,

742 (9th Cir. 2008). The court reviews a denial of a motion to remand for abuse of

discretion. de Jesus Melendez v. Gonzales, 503 F.3d 1019, 1023 (9th Cir. 2007).

We deny the petition for review.

      Substantial evidence supports the agency’s finding that the two death threats

Giraldo Rios received did not rise to the level of persecution. See Lim v. INS, 224

F.3d 929, 936 (9th Cir. 2000) (citation and internal quotations omitted) (“Threats

standing alone...constitute past persecution in only a small category of cases, and

only when the threats are so menacing as to cause significant actual suffering or

harm.”). Substantial evidence also supports the agency’s finding that Giraldo Rios

failed to establish the government was unwilling or unable to protect him. See

Castro-Perez v. Gonzales, 409 F.3d 1069, 1072 (9th Cir. 2005). Accordingly,

Giraldo Rios’ asylum claim fails.

      Because Giraldo Rios failed to establish his eligibility for asylum, he

necessarily failed to meet the more stringent standard for withholding of removal.

See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).




                                                                                08-71592
      Substantial evidence also supports the agency’s denial of CAT relief because

Giraldo Rios failed to establish it is more likely than not he will be tortured by or

with the acquiescence of a government official if returned to Colombia. See

Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir. 2007).

      In addition, we reject Giraldo Rios’contention that the BIA violated his due

process by ignoring, discounting, or misconstruing his testimony. See Lata v.

I.N.S., 204 F.3d 1241, 1246 (9th Cir. 2006) (requiring error and prejudice to

prevail on due process claim).

      Finally, the BIA did not abuse its discretion in denying Giraldo Rios’ motion

to remand because the evidence Giraldo Rios submitted was not material in light of

his inability to establish the government was unwilling or unable to protect him.

See Shin v. Mukasey, 547 F.3d 1019, 1025 (9th Cir. 2008) (internal citation

omitted) (“Aliens who seek to remand or reopen proceedings to pursue relief bear a

‘heavy burden’ of proving that, if proceedings were reopened, the new evidence

would likely change the result in the case.”).

      PETITION FOR REVIEW DENIED.




                                                                                 08-71592
