                                                                             FILED
                             NOT FOR PUBLICATION                             DEC 15 2015

                                                                          MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                              FOR THE NINTH CIRCUIT


MIGUEL RAYA-RIVAS,                               No. 12-73964

               Petitioner,                       Agency No. A089-091-041

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted December 9, 2015**

Before:        WALLACE, RAWLINSON, and IKUTA, Circuit Judges.

      Miguel Raya-Rivas, a native and citizen of Mexico, 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,

withholding of removal, and protection under the Convention Against Torture


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

substantial evidence the agency’s factual findings, Tamang v. Holder, 598 F.3d

1083, 1088 (9th Cir. 2010), and we review de novo due process claims, Zetino v.

Holder, 622 F.3d 1007, 1011-12 (9th Cir. 2010). We dismiss in part and deny in

part the petition for review.

      We lack jurisdiction to consider Raya-Rivas’s contentions as to his cousin’s

alleged kidnapping because the IJ found this claim was not credible, and Raya-

Rivas did not challenge the IJ’s finding on appeal to the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (petitioner must exhaust claims in

proceedings below).

      We reject Raya-Rivas’s due process contention that the agency did not

sufficiently address whether changed circumstances excused his untimely asylum

application. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error

to prevail on a due process claim). Thus, we deny the petition for review as to

asylum.

      Raya-Rivas testified that he did not experience past harm or threats in

Mexico. Substantial evidence supports the agency’s determination that he failed to

establish it is more likely than not he would be persecuted on account of a




                                          2                                     12-73964
protected ground. See Zetino, 622 F.3d at 1016; Nagoulko v. INS, 333 F.3d 1012,

1018 (9th Cir. 2003) (possibility of future persecution “too speculative”). Thus,

Raya-Rivas’s withholding of removal claim fails. See Zetino, 622 F.3d at 1016.

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

CAT claim because he failed to establish it is more likely than not he would be

tortured by or with the consent or acquiescence of the government if returned to

Mexico. See Alphonsus v. Holder, 705 F.3d 1031, 1049-50 (9th Cir. 2013).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.




                                         3                                    12-73964
