                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAR 15 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 DERIS HERRERA-MACHADO,                           No.   15-73373

                  Petitioner,                     Agency No. A098-653-360

   v.
                                                  MEMORANDUM *
 JEFFERSON B. SESSIONS III, Attorney
 General,

                  Respondent.

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

                                Submitted March 8, 2017**

Before:       LEAVY, W. FLETCHER, and OWENS, Circuit Judges.

        Deris Herrera-Machado, a native and citizen of Honduras, petitions for

review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal

from an immigration judge’s decision denying his application for withholding of

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



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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, Wakkary v. Holder, 558 F.3d 1049, 1056 (9th Cir. 2009)

and we deny the petition for review.

      Substantial evidence supports the agency’s conclusion that the harms

Herrera-Machado suffered in Honduras as a gay man did not rise to the level of

persecution. See Nagoulko v. INS, 333 F.3d 1012, 1016 (9th Cir. 2003) (petitioner

who was teased, bothered, discriminated against, harassed, and never physically

harmed failed to establish harm rising to the level of persecution). Thus, Herrera-

Machado was not entitled to a rebuttable presumption of future persecution. See

Molina-Estrada v. INS, 293 F.3d 1089, 1096 (9th Cir. 2002). Herrera-Machado

does not otherwise challenge the agency’s determination that he failed to establish

it is more likely than not he would be persecuted if returned. Thus, we deny the

petition for review as to Herrera-Machado’s withholding of removal claim.

      Substantial evidence supports the agency’s denial of CAT protection

because Herrera-Machado failed to show it is more likely than not he would be

tortured by or with the consent or acquiescence of the Honduran government. See

Alphonsus v. Holder, 705 F.3d 1031, 1049 (9th Cir. 2013).

      PETITION FOR REVIEW DENIED.




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