                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 11 2013

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



                             FOR THE NINTH CIRCUIT


CONSUELO MARGARITA DE LEON-                      No. 09-71594
RIVAS,
                                                 Agency No. A099-672-883
              Petitioner,

  v.                                             MEMORANDUM*

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                            Submitted December 5, 2013**
                              San Francisco, California

Before: TROTT, THOMAS, and MURGUIA, Circuit Judges.

       Consuelo Margarita De Leon-Rivas, a native and citizen of El Salvador,

petitions for review of the Board of Immigrations Appeals’ (“BIA”) order

dismissing her appeal from an immigration judge’s decision denying her


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

Convention Against Torture. We have jurisdiction under 8 U.S.C. § 1252. We deny

the petition for review.

      Eligibility for asylum and withholding of removal requires a well-founded

fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion by either a government official or

individuals whom the government is unable or unwilling to control. Santos-Lemus

v. Mukasey, 542 F.3d 738, 742 (9th Cir. 2008). Substantial evidence in the record

supports the BIA’s denial of De Leon-Rivas’s application for asylum and

withholding of removal because De Leon-Rivas failed to show a well-founded fear

of persecution if returned to El Salvador by an individual whom the government is

unable or unwilling to control. Therefore, the Court need not reach whether De

Leon-Rivas has a well-founded fear of persecution on account of her membership

in a particular social group.

      To obtain protection under the Convention Against Torture, an applicant

must show that it is more likely than not that she will be tortured if she is removed

to the country of removal “‘by or at the instigation of or with the consent or

acquiescence of a public official.’” Santos-Lemus, 542 F.3d at 747 (quoting 8

C.F.R. § 1208.18(a)(1)). Substantial evidence in the record supports the BIA’s

conclusion that De Leon-Rivas is not entitled to protection under the Convention
Against Torture because she failed to show that if she returns to El Salvador she

will be tortured, and that public officials will consent or acquiesce to the torture.

      We do not have jurisdiction to consider whether De Leon-Rivas should be

granted asylum for humanitarian reasons, see Matter of Chen, 20 I. & N. Dec. 16,

19 (BIA 1989), because De Leon-Rivas did not exhaust this ground for relief

before the BIA, see Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).

      PETITION DENIED.
