                                                                           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                              NOT FOR PUBLICATION                            OCT 6 2011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



NELSON ADALBERTO DIAZ                             No. 08-73262
BENITEZ,
                                                  Agency No. A094-146-476
               Petitioner,

  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:        HAWKINS, SILVERMAN, and W. FLETCHER, Circuit Judges.

       Nelson Adalberto Diaz Benitez, a native and citizen of El Salvador, petitions

for review of the Board of Immigration Appeals’ order dismissing his appeal from

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

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

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

factual findings. Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009). We

deny the petition for review.

      Diaz Benitez does not raise any challenge to the agency’s dispositive finding

that he is ineligible for asylum due to his conviction for rape. See Martinez-

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

raised and argued in a party’s opening brief are waived). Thus, we deny the

petition as to his asylum claim.

      Diaz Benitez contends he qualifies for withholding of removal on account of

imputed political opinion and membership in two social groups. Substantial

evidence supports the agency’s finding that Diaz Benitez did not demonstrate past

persecution because the attacks on his uncle and brother were not tied to him. See

Wakkary, 558 F.3d at 1060 (murder of friend and associate were not “part of a

pattern of persecution closely tied to” petitioner) (internal quotation and citation

omitted). Substantial evidence also supports the agency’s finding that Diaz

Benitez has not demonstrated a clear probability of persecution. See INS v.

Cardoza-Fonseca, 480 U.S. 421, 430 (1987) (clear probability standard requires

alien “to establish by objective evidence that it is more likely than not that he or

she will be subject to persecution upon deportation”); Nagoulko v. INS, 333 F.3d


                                           2                                     08-73262
1012, 1018 (9th Cir. 2003) (petitioner’s fear not objectively reasonable under

circumstances of case). Accordingly, Diaz Benitez’s withholding of removal claim

fails.

         Finally, substantial evidence supports the agency’s denial of CAT relief

because Diaz Benitez failed to establish it is more likely than not he would be

tortured at the instigation or with the acquiescence of the Salvadoran government.

See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008).

         PETITION FOR REVIEW DENIED.




                                            3                                    08-73262
