                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 26 2011

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



                            FOR THE NINTH CIRCUIT



ELDER ALEXANDER MARTINEZ-                         No. 07-74863
RIVAS,
                                                  Agency No. A077-957-424
              Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



ELDER ALEXANDER MARTINEZ-                         No. 08-72448
RIVAS,
                                                  Agency No. A077-957-424
              Petitioner,

  v.

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.


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

                         Argued and Submitted May 4, 2011
                                Seattle, Washington

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: SCHROEDER, McKEOWN, and CALLAHAN, Circuit Judges.

      In these consolidated petitions, Elder Alexander Martinez-Rivas (“Martinez-

Rivas”), 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 (“IJ”) decision denying his application for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”), and the

BIA’s denial of his motion to reopen. We have jurisdiction under 8 U.S.C. § 1252.

We deny the petitions for review.

      Martinez-Rivas argues that the IJ erred in concluding he did not establish

past persecution or a well-founded fear of future persecution on account of his

race. This court reviews the BIA’s decision that a petitioner has not established

eligibility for asylum or withholding of removal for substantial evidence. Karouni

v. Gonzales, 399 F.3d 1163, 1170 (9th Cir. 2005). “This standard limits reversals

of BIA decisions to situations where the Petitioner has presented evidence so

compelling that no reasonable factfinder could fail to find that Petitioner has not

established eligibility for asylum.” Ali v. Ashcroft, 394 F.3d 780, 784 (9th Cir.

2005) (internal quotation and alteration marks omitted).

      Although Martinez-Rivas has clearly suffered harassment and discrimination

on account of his race, the evidence presented, even taken cumulatively, does not



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compel a finding of past persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016

(9th Cir. 2003).

      Because Martinez-Rivas did not establish eligibility for asylum, it follows

that he did not satisfy the more stringent standard for withholding of removal. See

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

      Contrary to Martinez-Rivas’s contention, the BIA acted within its discretion

in determining that he failed to file a timely motion to reopen. Martinez-Rivas did

not file his motion until two weeks after the deadline, the 2005 country report he

submitted with his motion to reopen could have been presented to the IJ, and the

2006 country report does not show materially different conditions in Guatemala.

See, e.g., Garcia v. Holder, 621 F.3d 906, 912 (9th Cir. 2010) (“A motion to

reopen must be based on evidence that is ‘material and [that] was not available and

could not have been discovered or presented at the former hearing.’”) (quoting 8

C.F.R. § 1003.2(c)(1)) (alteration in Garcia).

      PETITIONS FOR REVIEW DENIED.




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