                                                                           FILED
                             NOT FOR PUBLICATION                            AUG 15 2012

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




                             FOR THE NINTH CIRCUIT



MIGUEL ANTONIO HERNANDEZ-                        No. 10-73922
RODRIGUEZ,
                                                 Agency No. A088-346-420
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted August 8, 2012 **

Before:        ALARCÓN, BERZON, and IKUTA, Circuit Judges.

       Miguel Antonio Hernandez-Rodriguez, a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (“BIA”) order

dismissing his appeal from an immigration judge’s (“IJ”) decision denying his




          *
             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).
application for asylum, 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 and we

review de novo the agency’s legal determinations. Wakkary v. Holder, 558 F.3d

1049, 1056 (9th Cir. 2009). We deny the petition for review.

      Hernandez-Rodriguez and his cousin testified that the cousin’s ex-boyfriend,

an El Salvadoran police officer, hit the cousin and threatened her because she

married someone else. After the threats, the cousin fled to the United States,

accompanied by Hernandez-Rodriguez.

      Hernandez-Rodriguez does not contend that he suffered past persecution, but

he contends that he will be persecuted on account of his family relationship with

his cousin if he returns to El Salvador. Substantial evidence supports the BIA’s

denial of asylum and withholding of removal based on the fact that Hernandez-

Rodriguez’s family members remain in El Salvador and have not been harmed by

the ex-boyfriend. See Santos-Lemus v. Mukasey, 542 F.3d 738, 743-44 (9th Cir.

2008) (where petitioner’s claim of persecution is based on family membership, the

fact that family members remain unharmed is “substantial evidence” that petitioner

lacks a well-founded fear of future persecution). Accordingly, Hernandez-

Rodriguez’s asylum and withholding of removal claims fail.


                                          2                                      10-73922
       We reject Hernandez-Rodriguez’s argument that the IJ erred by failing to

credit his cousin’s testimony. Contrary to Hernandez-Rodriguez’s assertion, the IJ

acknowledged the cousin’s fear that her ex-boyfriend would harm Hernandez-

Rodriguez if he returns to El Salvador. Regarding the other portions of the

cousin’s testimony, Hernandez-Rodriguez fails to overcome the presumption that

the IJ considered the evidence. See Larita-Martinez v. INS, 220 F.3d 1092, 1095-

96 (9th Cir. 2000).

       We do not address Hernandez-Rodriguez’s contention that the IJ erred by

finding he failed to establish membership in a cognizable social group because the

BIA did not deny his claim on that basis. See Najmabadi v. Holder, 597 F.3d 983,

992 (9th Cir. 2010) (“[O]ur review is limited to the grounds actually relied upon by

the BIA . . . .”).

       Finally, Hernandez-Rodriguez does not raise any argument challenging the

agency’s denial of his CAT claim. 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).

       PETITION FOR REVIEW DENIED.




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