                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                     APR 18 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 WIFREDO ANTOLIN MAYORGA, AKA                     No. 13-72322
 Wilfredo Antolin Mayorga-Aguirre,
                                                  Agency No. A074-436-674
              Petitioner,

    v.                                            MEMORANDUM*

 LORETTA E. LYNCH, Attorney General,

              Respondent.

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

                              Submitted April 13, 2016**

Before:        FARRIS, TALLMAN, and BYBEE, Circuit Judges.

         Wifredo Antolin Mayorga, 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 applications for

asylum, withholding of removal, and relief 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 de novo

constitutional claims and questions of law, and review for substantial evidence the

agency’s factual findings. Mohammed v. Gonzales, 400 F.3d 785, 791-92 (9th

Cir. 2005). We dismiss in part and deny in part the petition for review.

      Because Mayorga did not appeal the IJ’s denial of his asylum application to

the BIA, we lack jurisdiction to review his claim that he was improperly denied

asylum. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (no subject-

matter jurisdiction over legal claims not presented in administrative proceedings

below).

      Contrary to Mayorga’s contentions, the agency did not err in considering his

suspended sentence, see 8 U.S.C. § 1101(a)(48)(B); Retuta v. Holder, 591 F.3d

1181, 1187-89 (9th Cir. 2010), or his sentence enhancement, see U.S. v. Rivera,

658 F.3d 1073, 1075-76 (9th Cir. 2011), abrogated on other grounds by Lopez-

Valencia v. Lynch, 798 F.3d 863 (9th Cir. 2015), in determining that he had been

convicted of a per se particularly serious crime that barred withholding of removal

under 8 U.S.C. § 1231(b)(3)(B)(ii). Because Mayorga was convicted of an

aggravated felony, see United States v. Morales-Perez, 467 F.3d 1219, 1223 (9th

Cir. 2006) (holding that a § 11351.5 conviction categorically qualifies as a drug

                                          2                                  13-72322
trafficking offense); see also Rendon v. Mukasey, 520 F.3d 967, 976 (9th Cir.

2008) (“possession of a controlled substance with the intent to sell contains a

trafficking element and is an aggravated felony”), and “an aggravated felony

conviction is considered to be a particularly serious crime . . . automatically, if the

applicant was sentenced ‘to an aggregate term of imprisonment of at least five

years[,]’” the agency was not required to consider the underlying circumstances of

Mayorga’s conviction, see Unuakhaulu v. Gonzales, 416 F.3d 931, 935 (9th Cir.

2005) (quoting 8 U.S.C. § 1231(b)(3)(B)).

      Substantial evidence supports the agency’s denial of deferral of removal

under CAT because Mayorga failed to establish that the Guatemalan government

would acquiesce in his torture. See Garcia-Milian v. Holder, 755 F.3d 1026,

1034-35 (9th Cir. 2014) (government was not willfully blind where it took steps to

combat the violence at issue, even if such measures were largely unsuccessful).

      Finally, we reject Mayorga’s claim that the agency violated his due process

rights. See Lata v. INS, 204 F.3d 1241, 1246 (9th Cir. 2000) (requiring error and

prejudice to prevail on a due process claim).

      PETITION FOR REVIEW DISMISSED in part; DENIED in part.



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