                                                                            FILED
                             NOT FOR PUBLICATION                            MAY 29 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


GILBERTO MENDOZA CALMO,                          No. 13-71079

               Petitioner,                       Agency No. A089-650-648

 v.
                                                 MEMORANDUM*
LORETTA E. LYNCH, Attorney General,

               Respondent.


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

                             Submitted May 13, 2015**

Before:        LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.

      Gilberto Mendoza Calmo, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ 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 (“CAT”). We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings, applying the standards created by the REAL ID Act,

Shrestha v. Holder, 590 F.3d 1034, 1039-40 (9th Cir. 2010), and review de novo

due process claims, Hartooni v. INS, 21 F.3d 336, 339 (9th Cir. 1994). We deny

the petition for review.

      With respect to Mendoza Calmo’s claim of mistreatment by gang members,

substantial evidence supports the agency’s adverse credibility determination based

on inconsistencies regarding the timing and number of times gang members

physically harmed him. See Shrestha, 590 F.3d at 1048 (adverse credibility

finding was reasonable under the totality of circumstances). We reject Mendoza-

Calmo’s contention that interpretation problems are to blame for the agency’s

adverse credibility finding because the record does not support it, and reject his

related due process claim. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir.2000)

(requiring error to prevail on a due process claim); Hartooni, 21 F.3d at 339-40

(petitioner failed to show there were interpretation problems that affected the

outcome of her proceedings). Substantial evidence supports the agency finding

that, with respect the remainder of Mendoza Calmo’s claim, his experiences in

Guatemala did not rise to the level of persecution. See Gu v. Gonzales, 454 F.3d

1014, 1019-21 (9th Cir. 2006) (a three-day detention and beating did not compel a


                                          2                                       13-71079
finding of past persecution). Substantial evidence also supports the agency’s

determination that Mendoza Calmo failed to establish a well-founded fear of future

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

of future persecution too speculative). Thus, Mendoza Calmo’s asylum claim fails.

      Because Mendoza Calmo failed to establish eligibility for asylum, his

withholding of removal claim necessarily fails. See Zehatye v. Gonzales, 453 F.3d

1182, 1190 (9th Cir. 2006).

      Finally, substantial evidence supports the agency’s denial of Mendoza

Calmo’s CAT claim because he failed to establish it is more likely than not he

would be tortured by or with the consent or acquiescence of the government if

returned to Guatemala. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir.

2008).

      PETITION FOR REVIEW DENIED.




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