                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 03 2011

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




                              FOR THE NINTH CIRCUIT



ELENO EMPERATRIZ LOPEZ-                           No. 09-71187
CIFUENTES; ELCIAS ELENO LOPEZ-
MAZARIEGOS,                                       Agency Nos. A072-141-396
                                                              A079-566-323
               Petitioners,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                              Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       Eleno Emperatriz Lopez-Cifuentes and Elcias Eleno Lopez-Mazariegos,

natives and citizens of Guatemala, petition for review of the Board of Immigration

Appeals’ order summarily affirming an immigration judge’s (“IJ”) decision


          *
             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).
denying their application for asylum, withholding of removal, and protection under

the Convention Against Torture (“CAT”). Our jurisdiction is governed by

8 U.S.C. § 1252. We review for substantial evidence, Zehatye v. Gonzales, 453

F.3d 1182, 1184-85 (9th Cir. 2006), and we deny in part and dismiss in part the

petition for review.

      Substantial evidence supports the IJ’s finding that the three unfulfilled

threats by the guerillas, even considered cumulatively, did not rise to the level of

persecution. See Lim v. INS, 224 F.3d 929, 936 (9th Cir. 2000) (unfulfilled threats,

without more, generally do not constitute past persecution). Substantial evidence

also supports the IJ’s determination that petitioners failed to establish a well-

founded fear of future persecution in light of changed country conditions in

Guatemala. See Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002)

(when a petitioner has not established past persecution, the agency may “rely on all

relevant evidence in the record, including a State Department report, in considering

whether the petitioner has demonstrated that there is good reason to fear future

persecution.”). Accordingly, petitioners’ asylum claim fails.

      Because Lopez-Cifuentes failed to establish his eligibility for asylum, he

necessarily failed to meet the higher standard of eligibility for withholding of

removal. See Zehatye, 453 F.3d at 1190.


                                           2                                        09-71187
         Finally, substantial evidence supports the IJ’s denial of CAT relief because

Lopez-Cifuentes has not shown it is more likely than not he will be tortured if

returned to Guatemala. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009).

         We lack jurisdiction to review petitioners’ contention that they qualify for

humanitarian asylum because they failed to exhaust this claim before the agency.

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

         PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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