                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 20 2013

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




                             FOR THE NINTH CIRCUIT



SERGIO ANTONIO DIAZ,                             No. 11-70053

               Petitioner,                       Agency No. A072-511-043

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

               Respondent.



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

                             Submitted March 12, 2013 **

Before:        PREGERSON, REINHARDT, and W. FLETCHER, Circuit Judges.

       Sergio Antonio Diaz, a native and citizen of Guatemala, 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 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, 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.

      We do not address Diaz’s credibility contentions, because the agency did not

make an adverse credibility determination.

      Substantial evidence supports the BIA’s findings that the threats Diaz

received in Guatemala do not rise to the level of persecution, see Lim v. INS, 224

F.3d 929, 936-37 (9th Cir.2000), and that Diaz failed to establish he was threatened

on account of a protected ground, see INS v. Elias-Zacarias, 502 U.S. 478, 482-83

(1992); Pedro-Mateo v. INS, 224 F.3d 1147, 1150-51 (9th Cir. 2000). Further, we

lack jurisdiction to review the IJ’s finding that Diaz failed to show the government

of Guatemala was unwilling or unable to protect him from gang violence, because

Diaz failed to challenge the finding to the BIA. See Barron v. Ashcroft, 358 F.3d

674, 678 (9th Cir. 2004). We also lack jurisdiction over Diaz’s newly raised

contentions, because he failed to raise them to the BIA. See id. Accordingly,

Diaz’s asylum claim fails.

      Because Diaz failed to meet the lower burden of proof for asylum, his claim

for withholding of removal necessarily fails. See Zehatye, 453 F.3d at 1190.


                                          2                                    11-70053
      Finally, substantial evidence supports the agency’s denial of Diaz’s CAT

claim because Diaz failed to show it is more likely than not he will be tortured with

the consent or acquiescence of the government if returned to Guatemala. See

Santos-Lemus v. Mukasey, 542 F.3d 738, 747-48 (9th Cir. 2008).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




                                          3                                   11-70053
