                                                                           FILED
                              NOT FOR PUBLICATION                          DEC 18 2013

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



                              FOR THE NINTH CIRCUIT


OVIDIO DIMAS MONTEROSO-                          No. 12-71473
BARILLAS, a.k.a. Ovidio Monterroso,
a.k.a. Ovidio Dimas Monterroso,                  Agency No. A029-133-595

               Petitioner,
                                                 MEMORANDUM*
  v.

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.


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

                             Submitted December 17, 2013**

Before:        GOODWIN, WALLACE, and GRABER, Circuit Judges.

       Ovidio Dimas Monteroso-Barillas, 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 order of removal. We have


          *
             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).
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the

agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.

2006).

      In his opening brief, Monteroso-Barillas does not challenge the agency’s

denial of his asylum claim as untimely, or its adverse credibility determination.

See Martinez-Serrano v. INS, 94 F.3d 1256, 1259-60 (9th Cir. 1996) (issues not

specifically raised and argued in an opening brief are waived). In the absence of

credible testimony, substantial evidence supports the BIA’s conclusion that

Monteroso-Barillas failed to establish eligibility for withholding of removal. See

Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). Further, because

Monteroso-Barillas’ claim for relief under the Convention Against Torture

(“CAT”) was based on the same testimony, and he does not point to any evidence

in the record indicating it is more likely than not he will be tortured if he returns to

Guatemala, substantial evidence also supports the BIA’s denial of his CAT claim.

See id. at 1156-57.

      PETITION FOR REVIEW DENIED.




                                            2                                     12-71473
