                                                                           FILED
                              NOT FOR PUBLICATION                            FEB 24 2011

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




                               FOR THE NINTH CIRCUIT



GILBERTO JESUS;                                    No. 07-74112
JOAQUIN ANGELINA MIGUEL,
                                                   Agency Nos.       A098-175-277
               Petitioners,                                          A098-175-278

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

               Respondent.



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

                              Submitted February 15, 2011 **

Before:        CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

       Gilberto Jesus and Joaquin Angelina Miguel, natives and citizens of

Guatemala, petition for review of a Board of Immigration Appeals’ (“BIA”) order

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

application for asylum, withholding of removal, relief under the Convention

          *
             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).
Against Torture (“CAT”), and cancellation of removal. Our jurisdiction is

governed by 8 U.S.C. § 1252. We review for substantial evidence factual findings.

INS v. Elias-Zacarias, 502 U.S. 478, 481 & n.1 (1992). We deny in part and

dismiss in part the petition for review.

      Petitioners do not challenge the IJ’s dispositive finding that their application

for asylum was untimely. Accordingly, their asylum claim fails.

      We lack jurisdiction to review Jesus’s contention that he suffered past

persecution in the form of emotional and psychological harm because he did not

raise that argument to the BIA. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004). With respect to future fear, Jesus’s testimony that guerrillas attempted to

recruit his father because his father was in good health does not establish Jesus

would be persecuted on account of a protected ground. See Elias-Zacarias, 502

U.S. at 483; Zetino v. Holder, 622 F.3d 1007, 1015 (9th Cir. 2010) (to be eligible

for withholding of removal, the Real ID Act requires a protected ground to be “one

central reason” for the persecution). In addition, substantial evidence supports the

agency’s finding that Jesus’s objective fear of persecution is mitigated by changed

country conditions in Guatemala. See Tamang v. Holder, 598 F.3d 1083, 1093

(9th Cir. 2010). Accordingly, Jesus’s claim for withholding of removal fails.




                                           2                                    07-74112
         Substantial evidence supports the agency’s denial of CAT relief because

Jesus failed to establish that it is more likely than not that he will be tortured if

returned to Guatemala. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.

2009).

         We lack jurisdiction to review the agency’s discretionary denial of

cancellation of removal. See Martinez-Rosas v. Gonzales, 424 F.3d 926, 929 (9th

Cir. 2005) (the court lacks jurisdiction to review the agency’s discretionary

determination that a petitioner did not establish an exceptional and extremely

unusual hardship).

         PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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