                                                                            FILED
                             NOT FOR PUBLICATION                             MAY 17 2012

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




                             FOR THE NINTH CIRCUIT



JULIO ANTONIO IZQUIERDO,                         No. 06-74629

               Petitioner,                       Agency No. A073-989-314

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

               Respondent.



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

                             Submitted May 15, 2012 **

Before:        CANBY, GRABER, and M. SMITH, Circuit Judges.

       Julio Antonio Izquierdo, a native and citizen of Peru, petitions for review of

the agency’s denial of his applications for asylum, withholding of removal,

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

status, and the Board of Immigration Appeals’ (“BIA”) denial of his motion to


          *
             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).
reopen and reconsider. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for substantial evidence the agency’s factual findings, we review for abuse

of discretion the denial of motions to reopen and reconsider, and we review de

novo questions of law including claims of due process violations. See Mohammed

v. Gonzales, 400 F.3d 785, 791-92 (9th Cir. 2005). We deny in part and dismiss in

part the petition for review.

      Substantial evidence supports the agency’s denial of asylum because

Izquierdo’s fear of returning to Peru was not objectively reasonable, given the lack

of record evidence that the Shining Path would target him upon his return. See

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

      Because Izquierdo failed to establish eligibility for asylum, he necessarily

failed to meet the higher standard of eligibility for withholding of removal. See

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

      Substantial evidence supports the agency’s denial of CAT relief, because

Izquierdo failed to show it is more likely than not he will be tortured by or with the

acquiescence of the government if returned to Peru. See Wakkary v. Holder, 558

F.3d 1049, 1067-68 (9th Cir. 2009).

      The BIA did not abuse its discretion in denying Izquierdo’s motion to

reopen, because he failed to establish prima facie eligibility for relief. See INS v.


                                           2                                     06-74629
Abudu, 485 U.S. 94, 104-05 (1988) (the BIA may deny a motion to reopen for

failure to establish a prima facie case for the underlying relief sought). The BIA

did not abuse its discretion in denying the motion to reconsider as untimely. See

8 C.F.R. § 1003.2(b)(2).

      Finally, we lack jurisdiction to review the agency’s discretionary denial of

adjustment of status, and Izquierdo does not raise a colorable due process

challenge to this discretionary determination. See Bazua-Cota v. Gonzales, 466

F.3d 747, 748-49 (9th Cir. 2006).

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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