                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 10 2012

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




                             FOR THE NINTH CIRCUIT



ERMIDIO EPIFANIO DIAZ-                           No. 10-70343
CALDERON,
                                                 Agency No. A072-115-833
               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.

       Ermidio Epifanio Diaz-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




          *
             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, Zehatye

v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006), and we deny the petition for

review.

       Even if Diaz-Calderon’s asylum application was not abandoned, and even if

he established a nexus to a protected ground, substantial evidence supports the

BIA’s finding that Diaz-Calderon’s mistreatment by guerrillas and the military did

not rise to the level of persecution. See Prasad v. INS, 47 F.3d 336, 339-40 (9th

Cir. 1995) (minor physical abuse during a single detention did not compel finding

of past persecution); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003)

(unfulfilled threats were harassment rather than persecution). Substantial evidence

also supports the BIA’s finding that Diaz-Calderon failed to established an

objectively reasonable well-founded fear of future persecution. See Molina-

Estrada, 293 F.3d 1089, 1095-96 (9th Cir. 2002) (petitioner failed to demonstrate a

reasonable fear of future persecution). Accordingly, Diaz-Calderon’s asylum

claim fails.

       Because Diaz-Calderon did not meet the lower burden of proof for asylum,

his withholding of removal claim necessarily fails. See Zehatye, 453 F.3d at 1190.


                                      2                                        10-70343
      Finally, substantial evidence supports the agency’s denial of CAT relief

because Diaz-Calderon failed to show it is more likely than not he will be tortured

by or with the consent or acquiescence of the government if returned to Guatemala.

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

      PETITION FOR REVIEW DENIED.




                                      3                                       10-70343
