                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 09 2012

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




                             FOR THE NINTH CIRCUIT



VICTOR HUGO VALIENTE                             No. 08-72560
CALDERON,
                                                 Agency No. A075-246-048
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Victor Hugo Valiente Calderon, 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 decision denying his application for




          *
             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).
withholding of removal. Our jurisdiction is governed by 8 U.S.C. § 1252. We

review for substantial evidence, Molina-Estrada v. INS, 293 F.3d 1089, 1093 (9th

Cir. 2002), and we deny in part and dismiss in part the petition for review.

      We reject Valiente Calderon’s contention that the agency erred in finding no

past persecution because he had not been physically harmed, because this was not

the basis for the agency’s past persecution finding. Valiente Calderon’s claim that

he was persecuted on account of a particular social group – namely, his family –

fails because he failed to exhaust this contention before the BIA. See Barron v.

Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). With respect to future fear, we reject

Valiente Calderon’s contention that the agency erred in failing to apply the

rebuttable presumption that his life or freedom would be threatened, because

Valiente Calderon did not establish past persecution. See 8 C.F.R. § 1208.16(b)(1).

Accordingly, Valiente Calderon’s withholding of removal claim fails.

      PETITION FOR REVIEW DENIED in part; DISMISSED in part.




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