                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 27 2010

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




                             FOR THE NINTH CIRCUIT



JOSE MANUEL GUERERRO ORTEGA,                     No. 09-70941

               Petitioner,                       Agency No. A093-488-357

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

               Respondent.



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

                             Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       Jose Manuel Guererro Ortega, a native and citizen of Mexico, petitions pro

se 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 relief 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 findings of fact, Ornelas-Chavez v. Gonzales, 458 F.3d 1052,

1055-56 (9th Cir. 2006), and de novo claims of due process violations, Colmenar

v. INS, 210 F.3d 967, 971 (9th Cir. 2000). We deny in part and dismiss in part the

petition for review.

      Substantial evidence supports the BIA’s finding that petitioner did not

establish past persecution or a well-founded fear of future persecution, because he

failed to demonstrate he was or will be harmed based on his homosexuality by

forces the Mexican government is unwilling or unable to control. See Nahrvani v.

Gonzales, 399 F.3d 1148, 1154 (9th Cir. 2005); see also Castro-Perez v. Gonzales,

409 F.3d 1069, 1072 (9th Cir. 2005) (failure to report non-governmental

persecution due to belief that police would do nothing did not establish that

government was unwilling or unable to control persecutors). Accordingly,

petitioner’s asylum claim fails.

      Because petitioner did not establish eligibility for asylum, it follows that he

did not satisfy the more stringent standard for withholding of removal. See

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

      Substantial evidence supports the BIA’s denial of petitioner’s CAT claim

because he failed to demonstrate it is more likely than not he will be tortured if


                                           2                                    09-70941
returned to Mexico. See Arteaga v. Mukasey, 511 F.3d 940, 948-49 (9th Cir.

2007).

         Petitioner’s contention that the IJ erred by excluding certain documents

without affording petitioner notice of the deficiencies or an opportunity to correct

them is not supported by the record. See Lata v. INS, 204 F.3d 1241, 1246 (9th

Cir. 2006) (requiring error and substantial prejudice to prevail on a due process

claim). We lack jurisdiction to review petitioner’s contentions that: (1) the IJ erred

by not letting petitioner explain the men who raped him in 1983 were released

early from prison due to family connections; and (2) the IJ exhibited bias towards

homosexuals, because these claims were not raised before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004).

         Finally, we decline to consider the evidence petitioner attached to his

opening brief because our review is limited to the administrative record underlying

the IJ’s decision. See Fisher v. INS, 79 F.3d 955, 963 (9th Cir. 1996) (en banc).

         PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                             3                                     09-70941
