                                                                           FILED
                              NOT FOR PUBLICATION                           NOV 16 2012

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




                              FOR THE NINTH CIRCUIT



TOMAS PELICO-HERNANDEZ,                           No. 10-71080

               Petitioner,                        Agency No. A088-915-388

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

               Respondent.



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

                             Submitted November 13, 2012 **

Before:        CANBY, TROTT, and W. FLETCHER, Circuit Judges.

       Tomas Pelico-Hernandez, a native and citizen of Guatemala, petitions for

review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s 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”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings and we review de novo the agency’s legal

determinations. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We

deny the petition for review.

      The record does not compel the conclusion that Pelico-Hernandez

established extraordinary circumstances to excuse his untimely application for

asylum. See 8 C.F.R. § 1208.4(a)(5). Accordingly, we deny the petition as to

Pelico-Hernandez’s asylum claim.

      Substantial evidence supports the BIA’s finding that Pelico-Hernandez

failed to establish the guerillas’ actions in Guatemala were motivated by either his

actual or imputed political opinion, or by his indigenous ethnicity. See INS v.

Elias-Zacarias, 502 U.S. 478, 482-84 (1992); Parussimova v. Mukasey, 555 F.3d

734, 740 (9th Cir. 2009) (“[t]he Real ID Act requires that a protected ground

represent ‘one central reason’ for an asylum applicant’s persecution”). With

respect to his fear of future harm, the BIA found that Pelico-Hernandez failed to

establish criminal gangs would persecute him on account of a protected ground.

Pelico-Hernandez does not challenge this finding. See Martinez-Serrano v. INS, 94

F.3d 1256, 1259-60 (9th Cir. 1996) (issues not supported by argument are deemed

waived). Accordingly, Pelico-Hernandez’s withholding claim fails.


                                          2                                     10-71080
      Finally, substantial evidence supports the BIA’s denial of CAT protection

because Pelico-Hernandez failed to demonstrate it is more likely than not he would

be tortured by or with the consent or acquiesce of a public official in Guatemala.

See Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir. 2009).

      PETITION FOR REVIEW DENIED.




                                          3                                   10-71080
