                              NOT FOR PUBLICATION                        FILED
                    UNITED STATES COURT OF APPEALS                        FEB 22 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT

MARLON ERNESTO GARCIA, AKA                      No. 15-72020
Pedro Antonio Castro, AKA Pablo Escobar,
AKA Marlon Ernest Garcia,                       Agency No. A205-719-962

                Petitioner,
                                                MEMORANDUM*
 v.

JEFFERSON B. SESSIONS III, Attorney
General,

                Respondent.

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

                          Submitted February 13, 2018**

Before:      LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.

      Marlon Ernesto Garcia, a native and citizen of El Salvador, petitions for

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

immigration judge’s decision denying his application for asylum and withholding


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of removal. 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 lack jurisdiction to consider Garcia’s request for humanitarian asylum

relief because he failed to raise it to the agency. See Barron v. Ashcroft, 358 F.3d

674, 677-78 (9th Cir. 2004).

      In his opening brief, Garcia does not challenge the agency’s dispositive

denial of asylum as time-barred. See Corro-Barragan v. Holder, 718 F.3d 1174,

1177 n.5 (9th Cir. 2013) (failure to contest issue in opening brief resulted in

waiver). Thus, we deny the petition as to Garcia’s asylum claim.

      Substantial evidence supports the agency’s finding that Garcia failed to

establish past persecution. See Al-Harbi v. INS, 242 F.3d 882, 889 (9th Cir. 2001)

(“Punishment on account of desertion generally does not support refugee status,

unless it can be shown that such punishment is based on political opinion or

another statutorily-protected ground.”). Further, the BIA did not err by declining

to consider Garcia’s arguments regarding the punishment for desertion in El

Salvador. See Matter of J–Y–C–, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007) (issues

                                          2                                       15-72020
not raised to the IJ are not properly before the BIA on appeal). Substantial

evidence also supports the agency’s conclusion that Garcia failed to establish it is

more likely than not he would be persecuted if returned to El Salvador. See

Fakhry v. Mukasey, 524 F.3d 1057, 1066 (9th Cir. 2008) (evidence did not compel

a finding that it is more likely than not petitioner would be persecuted upon his

return to Senegal). Thus, Garcia’s withholding of removal claim fails.

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




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