                                                                           FILED
                             NOT FOR PUBLICATION                            FEB 13 2013

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




                              FOR THE NINTH CIRCUIT



EDWIN ROBERTO MAZARIEGOS-                         No. 11-70303
MONTERROSO,
                                                  Agency No. A070-775-794
               Petitioner,

  v.                                              MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted February 11, 2013 **

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Edwin Roberto Mazariegos-Monterroso, a native and citizen of Guatemala,

petitions for review of a Board of Immigration Appeals’ order dismissing his

appeal from an immigration judge’s decision denying his application for asylum,




          *
             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).
withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for substantial

evidence the agency’s factual findings, Wakkary v. Holder, 558 F.3d 1049, 1056

(9th Cir. 2009), and we review de novo claims of due process violations, Ibarra-

Flores v. Gonzales, 439 F.3d 614, 620 (9th Cir. 2006). We deny the petition for

review.

       Substantial evidence supports the agency’s finding that Mazariegos-

Monterroso failed to establish he suffered past persecution on account of a

protected ground. See INS v. Elias-Zacarias, 502 U.S. 478, 482-84 (1992).

Because he did not establish past persecution, Mazariegos-Monterroso is not

eligible for humanitarian asylum. See 8 C.F.R. § 1208.13(b)(1)(iii). Further,

substantial evidence supports the agency’s finding that Mazariegos-Monterroso

failed to establish a well-founded fear of future persecution. See Halim v. Holder,

590 F.3d 971, 977 (9th Cir. 2009) (petitioner “failed to make a compelling

showing of the requisite objective argument of a well-founded fear”); Molina-

Estrada v. INS, 293 F.3d 1089, 1095-96 (9th Cir. 2002) (petitioner failed to

demonstrate a reasonable fear of future persecution). Accordingly, his asylum

claim fails.




                                          2                                     11-70303
         Because Mazariegos-Monterroso did not establish his eligibility for asylum,

it follows that he did not satisfy the more stringent standard for withholding of

removal. See Gormley v. Ashcroft, 364 F.3d 1172, 1080 (9th Cir. 2004).

         Substantial evidence also supports the agency’s denial of CAT protection

because Mazariegos-Monterroso failed to establish it is more likely than not he

would be tortured by or with the consent or acquiescence of the Guatemalan

government upon return. See Soriano v. Holder, 569 F.3d 1162, 1167 (9th Cir.

2009).

         We do not reach Mazariegos-Monterroso’s voluntary departure arguments

because they were raised for the first time in his reply brief. See Bazuaye v. INS,

79 F.3d 118, 120 (9th Cir. 1996) (per curiam).

         Finally, we reject Mazariegos-Monterroso’s due process contentions. 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 DENIED.




                                           3                                   11-70303
