                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 12 2012

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




                             FOR THE NINTH CIRCUIT



RUDY WALDEMAR PINEDA                             No. 10-71372
AGUILAR,
                                                 Agency No. A072-683-338
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Rudy Waldemar Pineda Aguilar, 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,




          *
             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).
withholding of removal, and relief under the Convention Against Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence

the agency’s factual findings, Santos-Lemus v. Mukasey, 542 F.3d 738, 742 (9th

Cir. 2008), and we deny the petition for review.

      Substantial evidence supports the BIA’s finding that Pineda Aguilar failed to

establish past persecution because his mistreatment, including being identified

through photographs during a demonstration and a subsequent assault on his

family, do not rise to the level of persecution. See Hoxha v. Ashcroft, 319 F.3d

1179, 1182 (9th Cir. 2003) (unfulfilled threats and one incident of physical

violence did not compel a finding of past persecution); Prasad v. INS, 47 F.3d 336,

339-40 (9th Cir. 1995) (abuse of Indo-Fijian during brief detention did not compel

finding of past persecution). Without past persecution, Pineda Aguilar’s

humanitarian asylum claim necessarily fails, see 8 C.F.R. § 1208.13(b)(1)(iii), and

he is not entitled to a presumption of a future fear, see Molina-Estrada v. INS, 293

F.3d 1089, 1096 (9th Cir. 2002). Substantial evidence supports the BIA’s finding

that Pineda Aguilar did not otherwise establish a well-founded fear of persecution.

See Nagoulko v. INS, 333 F.3d 1012, 1018 (9th Cir. 2003) (possibility of future

persecution too speculative). Accordingly, Pineda Aguilar’s asylum claim fails.




                                          2                                    10-71372
      Because Pineda Aguilar failed to establish eligibility for asylum, he

necessarily failed to meet the more stringent standard for withholding of removal.

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

      Finally, substantial evidence supports the agency’s finding that Pineda

Aguilar failed to establish it is more likely than not he will be tortured by or with

the acquiescence of a government official if returned to Guatemala. See Santos-

Lemus, 542 F.3d at 747-48. Accordingly, his CAT claim fails.

      PETITION FOR REVIEW DENIED.




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