                                                                           FILED
                              NOT FOR PUBLICATION                            OCT 6 2011

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




                              FOR THE NINTH CIRCUIT



ESTEBAN BERGANZA-GARCIA,                          No. 10-72069

               Petitioner,                        Agency No. A023-037-533

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

               Respondent.



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

                             Submitted September 27, 2011 **

Before:        SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

       Esteban Berganza-Garcia, 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 applications for

cancellation of removal, asylum, withholding of removal, and protection under the


          *
             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).
Convention Against Torture (“CAT”). Our jurisdiction is governed by 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). We deny in part and dismiss

in part the petition for review.

      We lack jurisdiction over Berganza-Garcia’s asylum and cancellation of

removal claims because he failed to exhaust any challenges to the IJ’s conclusion

that he is ineligible for these forms of relief due to his prior criminal convictions.

See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004) (this court lacks

jurisdiction to review contentions not raised before the BIA). Accordingly, we

dismiss Berganza-Garcia’s petition with respect to his asylum and cancellation of

removal claims.

      Substantial evidence supports the BIA’s conclusion that Berganza-Garcia

was not harmed in Guatemala. See Wakkary v. Holder, 558 F.3d 1049, 1060 (9th

Cir. 2009) (no past persecution where harm to others was not a part of “a pattern of

persecution closely tied to” petitioner). Substantial evidence also supports the

BIA’s conclusion that Berganza-Garcia failed to establish a clear probability of

future persecution on account of a protected ground based on his experiences

during the Guatemalan civil war, the killing of his brothers by guerrillas, and the

shooting of his niece by unknown assailants. See INS v. Elias-Zacarias, 502 U.S.


                                            2                                     10-72069
478, 481-82 (1992). Accordingly, Berganza-Garcia’s withholding of removal

claim fails.

       Finally, substantial evidence supports the BIA’s finding that Berganza-

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

consent or acquiescence of the Guatemalan government. See Silaya v. Mukasey,

524 F.3d 1066, 1073 (9th Cir. 2008).

       PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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