                                                                           FILED
                              NOT FOR PUBLICATION                           SEP 28 2010

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




                              FOR THE NINTH CIRCUIT



AXEL LEONEL ESPINO-OLIVA,                         No. 08-74367

               Petitioner,                        Agency No. A078-972-424

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

               Respondent.



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

                             Submitted September 13, 2010 **

Before:        SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.

       Axel Leonel Espino-Oliva, 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 relief under the Convention Against Torture (“CAT”).


          *
             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).
We have jurisdiction under 8 U.S.C. § 1252. This court reviews de novo questions

of law, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the

extent that deference is owed to the BIA’s determination of the governing statutes

and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). This

court reviews factual findings for substantial evidence. Zehatye v. Gonzales, 453

F.3d 1182, 1184-85 (9th Cir. 2006). We deny the petition for review.

      We reject petitioner’s claim that he is eligible for asylum or withholding of

removal based upon an imputed political opinion or his membership in a particular

social group. See Barrios v. Holder, 581 F.3d 849, 854-56 (9th Cir. 2009);

Santos-Lemus v. Mukasey, 542 F.3d 738, 744-47 (9th Cir. 2008); see also

Parussimova v. Mukasey, 555 F.3d 734, 740 (9th Cir. 2009) ( “The Real ID Act

requires that a protected ground represent ‘one central reason’ for an asylum

applicant’s persecution”). To the extent petitioner contends he is a member of a

particular social group distinct from that considered and rejected by the BIA, we

lack jurisdiction to consider the contention because he did not exhaust it. See

Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). Petitioner’s claim for

humanitarian asylum necessarily fails because he did not establish past

persecution. See 8 C.F.R. § 1208.13(b)(1)(iii). Accordingly, because petitioner

failed to demonstrate that he was or will be persecuted on account of a protected


                                          2                                     08-74367
ground, we deny the petition as to his asylum and withholding of removal claims.

See Barrios, 581 F.3d at 856.

      Substantial evidence supports the BIA’s denial of CAT relief because

petitioner failed to show it is more likely than not that he would be tortured if

returned to Guatemala. See Santos-Lemus, 542 F.3d at 747-48.

      Petitioner requests that his case be remanded in order to seek voluntary

departure, because his counsel erred in initially advising him not to request this

relief. We reject this request because petitioner already presented this claim to the

agency.

      PETITION FOR REVIEW DENIED.




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