                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 22 2011

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




                             FOR THE NINTH CIRCUIT



MATEO CRISTOBAL PASCUAL-                         No. 09-70096
JOAQUIN, a.k.a. Mateo Cristobal Pascual,
                                                 Agency No. A070-938-186
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted August 11, 2011 **

Before:        THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.

       Mateo Christobal Pascual-Joaquin, 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 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”). Our jurisdiction is governed by 8 U.S.C.

§ 1252. We review for substantial evidence, Wakkary v. Holder, 558 F.3d 1049,

1056 (9th Cir. 2009), and we dismiss in part and deny in part the petition for

review.

      We lack jurisdiction to review Pascual-Joaquin’s claim that he established

eligibility for asylum because he failed to raise this claim to the BIA. See Abebe v.

Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009) (en banc) (per curiam) (only issues

raised and argued in a petitioner’s brief before the BIA will be deemed exhausted

when a brief is filed).

      With respect to withholding of removal, Pascual-Joaquin concedes he did

not suffer past persecution. Pascual-Joaquin failed to establish a clear probability

of future persecution because the evidence in this case indicates only that Mayans

in Guatemala are subject to discrimination, see Ghaly v. INS, 58 F.3d 1425, 1431

(9th Cir. 1995) (“persecution is an extreme concept” and “discrimination is

insufficient”) (citation and internal quotation omitted), and the harm Pascual-

Joaquin fears from criminal groups is not on account of a protected ground, see

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“[a]n alien’s desire to be

free from harassment by criminals motivated by theft or random violence by gang




                                          2                                       09-70096
members bears no nexus to a protected ground”). Accordingly, substantial

evidence supports the agency’s denial of withholding of removal.

      Finally, substantial evidence supports the agency’s denial of Pascual-

Joaquin’s CAT claim, because he failed to show it is more likely than not that he

will be tortured if returned to Guatemala. See Wakkary, 558 F.3d at 1067-68.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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