                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 31 2013

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




                             FOR THE NINTH CIRCUIT



MANUEL DE JESUS MANCIA-                          No. 12-71726
GARCIA,
                                                 Agency No. A200-967-367
               Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

               Respondent.



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

                             Submitted July 24, 2013 **

Before:        ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Manuel de Jesus Mancia-Garcia, a native and citizen of Guatemala, petitions

pro se for review of the Board of Immigration Appeals’ (“BIA”) order dismissing

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

asylum, withholding of removal, and protection under the Convention Against

          *
             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).
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review for

substantial evidence the agency’s factual findings, Zhou v. Gonzales, 437 F.3d 860,

864 (9th Cir. 2006), and we deny the petition for review.

      As a preliminary matter, Mancia-Garcia’s contentions that the IJ’s adverse

credibility finding was unsupported and that it violated his due process rights fail

because the IJ found him credible.

      Substantial evidence supports the BIA’s conclusion that Mancia-Garcia

failed to establish past persecution where his abusers were private actors, he did

not report the abuse, and the record evidence before the IJ does not compel the

conclusion that the police were unwilling or unable to protect homosexuals. See

Castro-Martinez v. Holder, 674 F.3d 1073, 1080-82 (9th Cir. 2011). Substantial

evidence also supports the BIA’s conclusion that Mancia-Garcia failed to establish

a well-founded fear of persecution based on his sexual orientation where the record

evidence before the IJ did not show that the government would be unable or

unwilling to protect him, see id., or a pattern or practice of persecution of

homosexuals in Guatemala, see Wakkary v. Holder, 558 F.3d 1049, 1061-62 (9th

Cir. 2009). Accordingly, Mancia-Garcia’s asylum claim fails.




                                           2                                    12-71726
      Because Mancia-Garcia failed to establish eligibility for asylum, he

necessarily fails to meet the more stringent standard for withholding of removal.

See Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).

      Substantial evidence supports the BIA’s denial of CAT protection because

Mancia-Garcia failed to demonstrate it is more likely than not he will be tortured

by or with the consent or acquiescence of the Guatemalan government. See Silaya

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

      We do not consider the declaration submitted by Mancia-Garcia that is not

contained in the administrative record. See Fisher v. INS, 79 F.3d 955, 963 (9th

Cir. 1996) (en banc). Further, we do not consider Mancia-Garcia’s country

conditions evidence apart from the 2010 country report – this additional evidence

was not before the IJ, Mancia-Garcia did not cite to or otherwise make the BIA

aware of the evidence on appeal, and there is no indication the BIA reviewed it.

      The stay of removal granted on November 7, 2012 continues in effect until

the mandate issues. Thus, we deny Mancia-Garcia’s renewed motion to stay

removal as unnecessary.

      PETITION FOR REVIEW DENIED.




                                          3                                   12-71726
